South Asia Earthquake

Lord Ahmed: asked Her Majesty's Government:
	What financial and logistical support they have provided to the Government of Pakistan in response to the recent earthquake in Kashmir and north Pakistan.

Baroness Amos: My Lords, the United Kingdom has pledged £129 million for relief and reconstruction activities in Pakistan following the earthquake. The UK Government provided direct support to the relief effort led by the Government of Pakistan and channelled funds through UN agencies and NGOs. We flew out 86 search and rescue experts and funded over 70 relief flights, three Chinook helicopters and a Royal Engineers squadron. We have already provided £5 million for health, education and infrastructure reconstruction, and a further £65 million is committed.

Lord Ahmed: My Lords, I thank the Minister for her reply. On behalf of the British Kashmiri and Pakistani community, I take the opportunity to thank the British fire and rescue teams. I also thank the British Army and pilots for delivering the tents, blankets and medicines that were needed; the Department for International Development, the DEC and the British public for their support; and the British doctors. Will Her Majesty's Government consider giving the £70 million committed through the Earthquake Reconstruction and Rehabilitation Authority as a budgetary grant, rather than assistance over the long term?

Baroness Amos: My Lords, I thank my noble friend for his support for our efforts and those of other organisations. We will try to ensure that the funds that we have committed are spent in accordance with the Government of Pakistan's priorities. We are looking at whether those funds can be channelled through budgetary support—that would be the most effective way of ensuring that they are spent in accordance with the Government of Pakistan's priorities—but we have not yet made that decision.

Baroness Rawlings: My Lords, following the warnings from Human Rights Watch of the possibility of a return to massive sectarian violence in Gujarat and Kashmir, what representations have Her Majesty's Government made to the Indian Government, the state governments of Gujarat, Jammu and Kashmir and the Pakistani Government to take all steps possible to protect religious minorities in the two regions, especially in light of the past failures of these authorities to identify and prosecute those who plan and execute such attacks?

Baroness Amos: My Lords, the issues of human rights violations and abuses and the importance of protecting religious minorities are raised constantly as part of our ongoing dialogue with the Indian and Pakistani Governments.

Lord Avebury: My Lords—

Lord Judd: My Lords—

Lord Rooker: My Lords, it is the Liberal Democrats' turn.

Lord Avebury: My Lords, I acknowledge the generosity of the British Government, but will the Minister consider reallocating the £70 million that, she has said, is due to be given to ERRA directly to the agencies, in view of the widespread allegations of incompetence and bureaucracy in that organisation, particularly the 30,000 dud cheques that it passed off on the people who became homeless and were expecting £250 each to reconstruct their dwellings? Will she also consider that, in any reconstruction programme, the money should be channelled directly to villagers so they can decide, in collaboration with aid agencies, what sort of dwellings they should construct, rather than having to stick to ERRA's designs?

Baroness Amos: My Lords, we provided technical support to ERRA to help it to draw up a master plan for the overall reconstruction programme. Its responsibility is to co-ordinate and monitor at the federal, provincial and district levels. If reconstruction efforts are to mean anything in Pakistan, the Government of Pakistan have to be at the centre of those efforts. We will continue to work with the Government of Pakistan to ensure that the issues of corruption, which the noble Lord has raised, are tackled at a very early stage. The noble Lord may be aware that the Government of Pakistan have their own anti-corruption programme, which has delivered some success in the short term, and we want to see greater success in the longer term.

The Lord Bishop of Leicester: My Lords, is the Minister aware of the meeting between the most reverend Primate the Archbishop of Canterbury and the Prime Minister of Pakistan in March this year to discuss the contribution made by Christian minorities in that country to earthquake relief? Furthermore, is she aware of the very positive effects of UK governmental aid and charitable support for earthquake relief on interfaith relations in the region and in this country?

Baroness Amos: My Lords, I am aware of the discussions and of the enormous effort that UK Churches have put into working in an interfaith capacity. That work is very important in building greater trust on the ground, and we shall continue to support it.

Lord Judd: My Lords, is my noble friend aware that many front-line aid workers are saying that credit should be given to the Pakistan army for the part that it played in the relief? Is she also aware that they are emphasising that the fact that we came through without disease on the scale that had been feared was partly due to the mild winter and that a mild winter cannot be expected this year as well? If that is the case, we have only two months in which to tackle convincingly the reconstruction programme by providing housing that is both earthquake-proof and weather-proof.

Baroness Amos: My Lords, I am aware that a number of organisations have been complimentary about the efforts that the Pakistan military has made, particularly in handling some of the logistical difficulties that arose. The reconstruction efforts are likely to take some three to four years. The urgent thing to tackle between now and the onset of winter is the situation of the 50,000 people who still have not been able to go back to their village because of the nature of the disaster. We will need to ensure that semi-permanent camps are produced between now and the onset of winter so that they are sheltered.

Lord Swinfen: My Lords, are British helicopters still working in the earthquake area? Without them it will be virtually impossible to get medical relief to those who need it.

Baroness Amos: My Lords, I believe that helicopters were last used in early May, but if I am wrong about that I will write to the noble Lord.

Nano Materials

Baroness Miller of Chilthorne Domer: asked Her Majesty's Government:
	Whether, after their current consultation, they plan to develop a regulatory framework that covers specifically the production or application of nano materials.

Lord Rooker: My Lords, my department is currently gathering evidence to support decisions on the best ways to control any risks from the production and use of nano materials. This involves government-led research, supported by a proposed voluntary scheme. The evidence will be reviewed in two years, and, if sufficient information is available, we will make proposals for appropriate control.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his reply. Does he accept that this is a fast-moving area of technology with very exciting developments and that the UK has not led the field, as recognised in the report from the other place entitled Too little too late? We are losing out on some of the benefits of this exciting technology. Given the timescale involved, is the Minister confident that some of the hazards that this country will face—the products are already being imported and used here—will not pose a threat to human health or the environment? We just do not know whether they will. The resources devoted are too little, and the time taken by his department is too long. The market will be flooded with these products before we know much about them.

Lord Rooker: My Lords, it is not as if it has happened overnight. The voluntary scheme that I referred to should start in late summer this year, and the public consultation that was initiated in March will finish on 23 July. The process was initiated by my noble friend Lord Sainsbury in June 2003 when the Royal Society and the Royal Academy of Engineering were asked to investigate the implications. I realise that this is important technology and that products are now in use. I am told that probably dozens of laboratories and private companies are exploring and using these very tiny materials around the country.

Baroness Byford: My Lords, does the European Parliament have a regulatory framework on this question?

Lord Rooker: My Lords, I do not think that it does. We are doing the work as a voluntary process because it will be quicker. That is why we are going down this route rather than slapping on regulations. First of all, we need to assess the risks to humans and to the environment of these incredibly small materials. Some are in use now, and their potential is enormous. But we cannot make regulations at either European or UK level without the evidence on which to make them.

Earl Attlee: My Lords, where are the risks that have been identified so far thought to lie?

Lord Rooker: My Lords, I am told that a nanometre is one-billionth of a metre, which is about one-80,000th of a human hair. So we are talking about quite small bits. One of the points about such tiny materials is that the surface area is massive compared with the surface of large solid materials, and that brings in other factors.
	In respect of hazards, the key issue is a lack of hazard exposure or risk characterisation information, and that is why we are taking a precautionary approach. We also need to balance mass emissions of coincidentally produced nano particles from various combustion sources. It is not as though the materials are new; they have been around for thousands of years in the form of viruses, in some respects the particulates from diesel fumes, volcanic ash and so on. Nano materials are not new, but now they are being manufactured for use as products. That is what makes this different.

Lord Skelmersdale: My Lords, does the noble Lord accept that homoeopathy is a nano product and that a lot of people for a long time, if not thousands of years, have believed that it does them good?

Lord Rooker: My Lords, I think that that is a trick question. The original Question covered the production or application of nano materials. I am not getting involved in the row about different forms of medical practice.

Earl Ferrers: My Lords, does the noble Lord realise that some of us do not have the slightest idea what he is talking about? Some of us can understand something that may be an 80th or an 80,000th of a part of the size of a human hair, but what is a nano material?

Lord Rooker: My Lords, it is basically a reconfiguration of atoms and molecules in a way that has not existed before but is engineered by man. I can give the noble Earl some examples. He may have read about the phenomenon of self-cleaning windows. There are such things, and that is nanotechnology. The windows are coated with a material that is born out of nanotechnology. Work has also been done on sunscreens, and nanotechnology could have a massive benefit in the remediation of contaminated soil and water supplies. It has a lot of pluses, but we also have to measure the risk of possible minuses; that is the important point. Self-cleaning windows are a good example.

Armed Forces: Joint Strike Fighter

Lord Hoyle: asked Her Majesty's Government:
	What representations they have made to the Government of the United States on their decision to deny the United Kingdom access to stealth technology used in the F-35 and to cancel plans for a second engine for the fighter to be built by Rolls-Royce and General Electric.

Lord Drayson: My Lords, my right honourable friend the then Secretary of State for Defence and I have both explained to our US opposite numbers our requirement for appropriate assurances on information exchange prior to signing the production, support and follow-on development MoU for the Joint Strike Fighter. We remain optimistic that we will receive the information that we require. We have also explained our views on the advantages of pursuing an alternative engine for the aircraft.

Lord Hoyle: My Lords, I am disappointed at the Americans' attitude. Here we are, the most loyal and staunchest ally, yet when we go to them and ask for technology and benefits, they do not reciprocate and offer them to us. Why is that? Why are they dragging their feet in that way? I understand that talks have taken place, but what measures are we taking to get the Americans to change their minds and to realise that it cannot all be one-way traffic?

Lord Drayson: My Lords, we should recognise that we have been successful over many years in working with the Americans on technology transfer relating to highly sensitive defence matters. However, matters relating to the Joint Strike Fighter are complex, and we are clear what specific areas of technology transfer we will require to use, operate and fight the aircraft in the way that we as a sovereign nation wish. These matters are receiving the highest level of attention in the Ministry of Defence, and we remain optimistic that by the end of this year we will receive the information that we require to be able to sign the MoU.

Lord Boyce: My Lords, will the Minister be more specific in answer to the previous question and say whether we have been unsuccessful in areas other than that referred to on the Order Paper, where we cannot get the Americans to pass across the technology for use in equipment that is either in use or about to be put to use in our Armed Forces?

Lord Drayson: My Lords, the noble and gallant Lord is correct that we have had difficulties; they have arisen because of the bureaucratic nature, in some cases, of the process by which technology transfer takes place. We have a simpler system of transferring technology to the United States, and it has worked more efficiently. It is clear that we have to improve the process; however, I am pleased at how the matter is receiving attention at the highest levels in the American Administration, and I remain optimistic that the Joint Strike Fighter problem can be resolved and that that can indicate an improved bilateral relationship on technology transfer.

Lord Garden: My Lords, I assume that the Minister receives copies of the United States Government Accountability Office reports, of which there have been two recently on the Joint Strike Fighter. The first, on 22 May, criticises the US Department of Defense for increasing costs through not competing the engine—in other words, the GAO supports the Rolls-Royce solution. Does the Minister agree that that is a case to be made? The second report of 15 March is more worrying. Does the Minister share the GAO's concerns about the risks of cost-price inflation for the JSF, given that the Americans are going into production before they have finished development?

Lord Drayson: Yes, my Lords, there is a strong case to be made for having two engines. The later technology in the Rolls-Royce engine provides potential advantages in terms of fatigue, life and power, and in the procurement approach, where we see that as an option. We have been making that case strongly. I have read the reports to which the noble Lord referred, and we share those concerns. The costs for the system development phase of the JSF have increased from $28 billion to $41 billion. Our contribution to that is fixed at $2 billion through the agreement that we signed. We have to look at this carefully as we go forward. We have not committed yet to the programme. We have not gone through a main investment decision. We need to look closely at the development of the cost and timescale.

Lord Pearson of Rannoch: My Lords—

Lord Craig of Radley: My Lords—

Lord King of Bridgwater: My Lords—

Lord Rooker: Lord King.

Lord King of Bridgwater: My Lords, does the Minister recognise that, if he failed to achieve what the noble Lord, Lord Hoyle, indicated in his Question, it would be enormously damaging to the defence relationship between our two countries? I think that he fully understands that, and I hope that his new Secretary of State is fully aware of it as well. This is of such significance that I hope that he has made the Prime Minister fully aware of it and that the Prime Minister, despite the relationship that he has with the president of the United States, makes it absolutely clear that it is vital for our country that the transfer is achieved.

Lord Drayson: My Lords, I am absolutely crystal clear about the importance of the matter. Recently, when I was in Washington, I said to the Senate Committee on Armed Services that, if we were not able to receive the information that we required to have the operational sovereignty to fight this aircraft, we will not be able to buy the aircraft.

Lord Craig of Radley: My Lords, do her Majesty's Government recognise that the commitment to build and to commission two new large aircraft carriers could not be sustained unless there were suitable combat aircraft to embark on them?

Lord Drayson: My Lords, the noble and gallant Lord is absolutely right: our carrier strike capability, which is a fundamental plank of our strategic defence posture, requires there to be appropriate aircraft to go on the two new aircraft carriers. Therefore, the Joint Strike Fighter is an important aircraft for us. None the less, we have contingency plans.

Lord Pearson of Rannoch: My Lords, would it not be understandable for the Pentagon to be nervous of sharing stealth and other sophisticated technology with us, if it feared that we, under our EU commitments, might have to share it with the French and, through them, more widely? If that is so, does it not mean that the special relationship is pretty well over?

Lord Drayson: My Lords, I am grateful to the noble Lord for raising the issue because it gives me the opportunity to be crystal clear on this point also. There is absolutely no requirement on us, under British law or any EU treaty, to share technology related to this or any other defence-related project. Where we have received information, we are under no requirement to pass it on to any of our EU member state partners.

Lord Russell-Johnston: My Lords, does the Minister see any relationship between this matter and the reported intention of BAe to withdraw from the Airbus project in order to invest in American defence projects?

Lord Drayson: No, my Lords. I have spent considerable time studying the BAe strategy, and I do not believe that there is any connection between the sale of the Airbus stake and the Joint Strike Fighter project.

Lord Astor of Hever: My Lords, further to the second part of the question put by the noble Lord, Lord Garden, the Senate Committee on Armed Services has voted to delay JSF production by a year. What consequences will that have for our STOVLs, and is there still a weight problem?

Lord Drayson: My Lords, there is no weight problem, although we have to watch the development of the aircraft carefully to ensure that the STOVL weight problem does not come back. On progress, the project is going through an important development stage: we are seeing the first flights of the aircraft. As such, we need to recognise the procurement risks in such a complex project, particularly one that depends on international collaboration. We should not forget that a significant contribution of British technology has gone into the project. We need to monitor it carefully and make commitments in a staged way as the project progresses.

Contaminated Blood Products: Hepatitis C

Lord Jenkin of Roding: asked Her Majesty's Government:
	Whether the files of papers about contaminated blood products which have recently come to light, some of which have been returned to the Department of Health, provide evidence to support the claims of haemophiliacs that their infection with hepatitis was caused by such blood products.

Lord Warner: My Lords, we have established that a number of documents that have been disclosed by the department in the HIV and hepatitis C litigation were held by Blackett Hart & Pratt Solicitors. It agreed to return the papers to our solicitors, who are now considering them with other departmental officials. Advice has yet to be given to Ministers on the significance of the returned files.

Lord Jenkin of Roding: My Lords, the files that have turned up came from the archives of more than one firm of English solicitors. Given the substantial volume of documents passed to the department's solicitors—I am told that there are no fewer than 12 big lever-arch files—and the fact that what they have is a small fraction of the material that has been held in solicitors' archives, and given that the department's paper Self-Sufficiency in Blood Products in England and Wales was expressly dependent on information that had survived the inadvertent destruction of some 600 of its files, are not there overwhelming arguments for a much more open, independent inquiry into what many regard as perhaps the most serious disaster that has ever happened in the National Health Service?

Lord Warner: My Lords, as the noble Lord acknowledges, there are a substantial number of lever-arch files, as he put it, containing documents to be gone through, which is what we are doing. Until we have gone through those files we cannot explain to the noble Lord or anyone else the significance of the documents for the document that we published. We will go through those files as quickly as possible, and I will discuss shortly with my honourable friend the Minister for Public Health how we can give public reassurance and place information from those files where it is significant in the public arena.

Lord Morris of Manchester: My Lords, I declare an interest as president of the Haemophilia Society. Is my noble friend aware that 1,242 haemophilia patients have now been fatally infected by contaminated NHS blood products? In the light of this awesome reality, is it not disgraceful that officially protected documents of such sensitivity and importance to the haemophilia community were destroyed at the Department of Health? Is it not indisputable now that extra funding is urgently needed to help the afflicted and bereaved, not least widows who today receive no help at all?
	Again, has not the case now become unanswerable for an impartial public inquiry into what my noble friend Lord Winston, vice-president of the Haemophilia Society, has called the worst-ever treatment disaster in the history of the NHS?

Lord Warner: My Lords, I pay tribute to my noble friend's work on behalf of the Haemophilia Society and its members. He has great persistence and skill in this area. I share his concerns about the position that many of the victims whose blood has been infected by hepatitis C have suffered. As he knows, we have introduced a hepatitis C ex gratia payment scheme, which is working. We do not believe that a public inquiry is needed. As I have said on many occasions in the House, we do not think that there is evidence to suggest wrongdoing. We will examine carefully the new files that the solicitors have passed to us and place the results in the public arena as quickly as possible.

Baroness Barker: My Lords, what steps will the Department of Health take to ensure the safety of the documents and to ensure that they will not be destroyed inadvertently, as documents that should have been kept for 25 years were destroyed between 1994 and 1998?

Lord Warner: My Lords, they were passed from solicitor to solicitor. Government solicitors have professional responsibilities in this area. My colleague Caroline Flint and I will ensure that they are safeguarded, but we need the time to go through the documents to see what their significance is. There are a large number of documents to be gone through.

Baroness Gardner of Parkes: My Lords, surely the Minister accepts, though, that the haemophiliacs who have hepatitis got it from blood products. He said that there was no evidence of wrongdoing, but I do not think that anyone is talking about wrongdoing. People would never have given blood products if they had been aware that they were contaminated. It was a most unfortunate thing. As chairman of a hospital that had a major haemophiliac unit, I saw such tragic cases, and it should be acknowledged that that was the cause.

Lord Warner: My Lords, I do not want to give a science lecture, but we have been over the ground before. The blood infected with hepatitis C was used in circumstances where there was no means of identifying hepatitis C in the blood. The clinical opinion at the time was that hepatitis C was a mild infection, and it took 25 years to find out its seriousness. There was no means of treating the blood in those circumstances. This was blood given to people when it was a matter of life or death whether they received that blood, and we were acting on the best scientific and clinical advice at the time.

Baroness Finlay of Llandaff: My Lords, given the distress caused to those who are now bereaved, can the Minister give an assurance that the information gleaned from the review of documents will be communicated not just to the public through the press and media but directly to bereaved families, who may need help in interpreting the information that they receive?

Lord Warner: My Lords, the noble Baroness's point is absolutely fair, and I accept it. We will be working with the Haemophilia Society. We will consult it, as we do on many occasions, when we have been through the documents, and we will discuss with it how best to inform individual members of the society and others, where that is appropriate and necessary.

Safeguarding Vulnerable Groups Bill [HL]

Report received.
	Schedule 1 [Independent Barring Board]:

Baroness Buscombe: moved Amendment No. 1:
	Page 32, line 33, leave out sub-paragraph (3) and insert—
	"( ) No less than half of the members of the IBB shall be relevant persons seconded from a local authority.
	( ) "Relevant persons" means persons with skills in any aspect of child protection or the protection of vulnerable adults."

Baroness Buscombe: My Lords, the Independent Barring Board will be called on to make some incredibly difficult decisions and we will be exposed to an enormous volume of cases. The amendment is intended to clarify the exact make-up of what I shall refer to as the IBB. There is a clear case for seconding skilled professional staff from within local authorities to ensure that the IBB is continually refreshed with skilled and experienced professionals, who will be equipped with an up-to-date working knowledge of the relevant child and vulnerable adult protection.
	The benefit of manning half of the IBB with skilled local authority professionals is that it provides a degree of flexibility in the recruitment of the remaining IBB members. That provides further opportunities to ensure that the IBB maintains a strong professional and capable membership. The volume of cases will require significant staff resources. Will the Minister elaborate on how the IBB is to employ its staff? It is right to envisage that long-term exposure to disturbing cases may result in a fairly high turnover of staff and board members. It is therefore essential that we get the process of recruitment and the composition of the IBB right.
	Can the Minister tell us how large the entire IBB will be? He has stated that he envisages a membership of 10 to 12 of the board, but I expect that that means an executive of 10 to 12 and a much larger staff base. I have heard various figures suggested as to how many applications will be processed every year. It is possible that the number of applications to be processed will be up to 2 million per year. That seems like a huge figure but, given the number of people in employment, I suppose that it is not that large. I hope that the Minister can give a more solid estimation of the IBB's workload. Can he also suggest how many staff he expects to take on in total to cover that workload? How much does he think that it will cost?
	I should also be very grateful if the Minister could suggest where the IBB might be based. Does he intend to run it as a central operation, or will local authorities be expected to take the brunt of the work and provide a satellite IBB staff to make the initial checks? The workload incurred by the IBB could impose a serious burden on local authorities. I therefore seek reassurances from the Minister on that point.
	If Her Majesty's Government are not aware of the potential workload of the IBB, I will certainly come back at Third Reading with an amendment to ensure that local authorities are not expected to bear the burden of the IBB's groundwork. I beg to move.

Lord Adonis: My Lords, I am very grateful to the noble Baroness for giving me the opportunity to say more about the IBB and to cover ground that we covered in Grand Committee, when I made available to her the regulatory impact assessment, which covers the issue of costs. First, I shall explain the broad structure of the IBB and some of the criteria for selecting its members, as the noble Baroness's amendments relate to the composition of the IBB. I shall also respond to her points about the members of staff, how they might be recruited, and what the total size of the staff will be.
	The IBB will have a chairman and members. We expect its executive to have a total of about 10 members. It will be able to appoint members of staff to enable it to carry out its core functions of deciding whether to include an individual on a list, determining whether to remove someone from a list, and considering representations. Its other functions may be delegated. We expect that much of the administrative work will be done by the Criminal Records Bureau, and will build on the bureau's current expertise in data-handling. So the great bulk of the work, to which the noble Baroness referred, will be done by the CRB.
	We expect the IBB to employ about 100 staff in total—that is, over and above the number of members of the board. We also expect it to take approximately 20,000 decisions a year, and to bar about 25,000 people. I am told that the location of the IBB is unknown at the moment, but I will let the noble Baroness know what the options are as and when we have them. We expect the cost of the IBB to be in the region of £12 million to £15 million, over and above the existing costs of the Criminal Records Bureau.
	The IBB and its staff will need to be the best people, with relevant expertise. As I said in Grand Committee, there is considerable expertise in local authorities, and we hope and expect that expertise to be represented in both the membership and the staff. However, its members and staff must also have had experience in a wide range of professions other than local government. For example, the interim expert panel, chaired by Sir Roger Singleton, includes individuals drawn from local government, the chief constable of a major police authority, child psychiatrists, a representative of the National Offender Management Service, the chief executive of the National Confederation of Parent Teacher Associations, and a senior representative from the Children's Society.
	Respondents to the department's recent consultation on IBB membership suggested that it should include: experts in employment law and civil and human rights; experts on vulnerable older people; informal carers; human resources professionals; those engaged in, and with knowledge of, supported housing; professional and regulatory bodies; victim support groups; and many others. The length of this list shows that we cannot expect the 10 members of the IBB alone to represent all these areas of expertise, but we do expect the members of the IBB and its staff to represent all the necessary disciplines. That is why we need the larger membership that I have set out. But we do not want to put rigid quotas in the Bill, for reasons that I am sure the noble Baroness will appreciate. We believe that to do so would impose undue rigidities on the body and would constrain the Secretary of State's ability to appoint to the IBB people with the best range of expertise as a whole to perform the tasks of the IBB.
	We also need members' experience to be recent and to be coupled with knowledge of the situation on the ground. Secondees to the staff will have recent relevant experience, and we expect them to come from various sources, including, of course, local authorities. They will fulfil another valuable role; taking the experience of working in the IBB back to frontline services when their secondments finish. As well as secondees being among the IBB's staff, paragraph 2 of Schedule 1 states that IBB members will be appointed on fixed-term contracts that cannot exceed five years. This will help to ensure that there is a reasonable turnover among members, and that their experience is up to date. I know that members of the Grand Committee were concerned that that should happen.
	I hope this gives the noble Baroness the information that she sought, and that it will enable her to withdraw her amendment.

Baroness Sharp of Guildford: My Lords, I have two issues. Will there be a read-over between the current POCA and POVA lists and List 99 into the new lists? Secondly, is there likely to be an initial rush of applications, as there was with CRB checks? The Minister mentioned a figure of 20,000 applications a year, but the NSPCC has been talking about 2 million being processed. It may well be that initially there will be something like 2 million but, given the run-up, will the IBB authority be in a position to process what might initially be such a substantial amount of work?

Lord Adonis: My Lords, there will be a read-over between the existing lists and the new list maintained by the IBB. So far as the additional number of checks is concerned, I do not believe that there will be that cliff edge feared by the noble Baroness, Lady Sharp, since the increase in the categories covered by CRB checks is being done over the next two years. In response to the events of January and the statement made by the then Secretary of State for Education and Skills, we have extended the requirements to undertake CRB checks. That is being done in stages. When the IBB regime comes into play, there will be no sudden cliff edge with a huge additional number of checks required. So, I believe that the move from the existing system to the new one will be manageable.

Baroness Howarth of Breckland: My Lords, I hope first that the Minister will tell me if I am asking an inappropriate question but, as I understand it, there are already staff with considerable expertise carrying out this task. Clearly, it would be a great pity if those staff were lost at this point. There is also, presumably, a cost implication because their costs are already being incurred. Secondly, having spoken to Sir Roger Singleton, I understand that the range of referrals is indeed wide. Will the new board have some capacity to make decisions on that? I notice that the schedule gives them delegated powers. How will they be able to use those powers to get their priority lists properly scheduled?

Lord Adonis: My Lords, in my year in your Lordships' House I have never known the noble Baroness to ask an inappropriate question, so she need have no concerns on that score. It is our intention that existing professional staff dealing in the area, who of course have a good deal of experience and expertise, should be able to transfer to the IBB as appropriate. However, the decision on how many would transfer and for what areas of expertise they would be recruited is a matter for the IBB itself, once it is established. We do not intend to take such decisions for it, but expect some of the existing staff who would deal with those cases to transfer.
	On the issue of how the IBB organises its own activities, there is wide discretion in the Bill for it to decide how to handle those matters—and for precisely the reason given by the noble Baroness, Lady Howarth, which is that Sir Roger has identified that its range of responsibilities is wide. We do not want to constrain unduly the way that it works.

Baroness Buscombe: My Lords, with reference to my earlier question, I also wonder whether the Minister could reassure us at this stage that the role of local authorities will not extend to acting as what one might call a point of entry for initial checks.

Lord Adonis: My Lords, local authorities play a role in the existing CRB system in validating the identity of many who come forward for checks. However, they will play no role over and above that in the new regime. If the concern of the noble Baroness, Lady Buscombe, is that it will impose additional and unfunded obligations on local authorities, as I believe she fears, that will not be the case.

Baroness Buscombe: My Lords, I am grateful to the Minister for that reply. That was one concern that we had considered between Committee and today's debate. I will use this opportunity to thank the Minister for the chance that we had to meet him and his officials to discuss the Bill before Report. That has been extremely helpful.
	I am pleased that the Minister has responded to our repeated proposal that it should be possible to second individuals from industry and other organisations to refresh the IBB, and that those secondees should extend to staff at the board. It is important too that we have had this opportunity to clarify how the system is to work, the composition of the board and its total staffing numbers—it is helpful to know now that we can envisage around 100 staff—and the numbers of decisions in respect of applications and bars. I thank the Minister for his detailed response and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 2 [Barred lists]:

Lord Harris of Haringey: moved Amendment No. 2:
	Page 1, line 17, leave out subsection (6).

Lord Harris of Haringey: My Lords, in moving Amendment No. 2 I shall speak also to Amendments Nos. 68 and 69, which are all part of a package. My concern throughout our consideration of the Bill has been twofold. First, I have wanted to see as broad as possible a mechanism for ensuring that people who may present a risk to children or vulnerable adults are picked up through this new mechanism and placed on the barred list. Secondly, however, I am concerned about situations where names might be put forward maliciously or without proper regard. These amendments would ensure that the legal indemnities, which were extremely wide in the original Bill, would not apply in situations where the provision of information that would lead to the Independent Barring Board considering whether to include someone on the barred list was originated by someone who knew that the information was untrue. In those circumstances, one would have to assume that the information had been provided maliciously. That is an essential safeguard.
	Later amendments address the requirement for a professional judgment to be expressed when considering whether someone may be liable to cause harm or may intend to do so, but what worries me are situations in which the judgment, regardless of whether it is expressed by a professional, may be used to harm an individual entirely maliciously. I can conceive of circumstances where that may happen, particularly in smaller organisations where a chief executive has found a certain member of staff irritating, annoying, disruptive and so on, but whose behaviour had nothing to do with their professional conduct in respect of children or vulnerable adults. That chief executive may decide, once the individual has left the organisation, that he will try to wreck their future career, and to do so by making a reference to the IBB. We must have a provision that protects people from that kind of abuse in what is otherwise an extremely important system. That is why the amendment is designed to ensure that anyone who may have such a malign intention to try to destroy someone's name and future career would not be the recipient of the indemnity that the Bill previously would have given them. That is why the amendment is important. It would provide a vital safeguard and make sure that the system is not brought into disrepute by individuals trying to abuse it. It is because I want the system to work that I believe it is important to reduce the legal indemnity originally included in the Bill. I beg to move.

Lord Adonis: My Lords, my noble friend has rightly raised the issue of vexatious and malicious allegations masquerading as references of information to the Independent Barring Board. He raised the point both at Second Reading and in Grand Committee. We have given it a good deal of consideration and agree that it is important to limit the exemption from claims for damages in the case of vexatious and malicious allegations. We are therefore very glad that he has come forward with these amendments, which refine the previous provisions made by the Bill. His new subsection (2) of Clause 43 would remove protection from damages claims in cases where the provider of the information knew that the information was untrue, and was either the originator of the information or caused another to be the originator of the information.
	We believe that it is important to limit the exception to these cases. We do not want to allow claims for damages to be made in cases where referring bodies are under a duty to provide information which they had no hand in creating and the content of which they could not control. But we see no reason why referring bodies should be protected from defamation claims in circumstances where they deliberately create defamatory material which they know to be untrue for the purpose of referring it to the IBB.
	We entirely agree with my noble friend in this regard. We understand the impact that allegations to the IBB will have on the personal and professional reputations of those affected, and we do not want allegations of untrue information to blight people's lives. On the other hand, we do not want to reduce the flow of information that is true, or genuinely believed to be true, because this information forms the basis on which the IBB can consider whether to include a person in the list.
	We are therefore very happy to support the amendments of my noble friend, as we believe that they address both these points. They give a legitimate exemption from claims for damages, but they do not impede the proper flow of information to the IBB. On that basis, we are content to accept the amendments of my noble friend.

Lord Harris of Haringey: My Lords, I am grateful to my noble friend for that response. The approach that he and his colleagues have taken during the discussion so far on this Bill—we shall see how far we get during the rest of the day and in a couple of weeks' time—has demonstrated a willingness to listen and to take on board what are genuine concerns from people who want the Bill to work and to be effective. So I am grateful to my noble friend for that reply.

On Question, amendment agreed to.
	Schedule 2 [Barred lists]:

Baroness Walmsley: moved Amendment No. 3:
	Page 36, line 14, leave out "child"

Baroness Walmsley: My Lords, this amendment relates to the Schedule 2 definition of what sort of behaviour can be regarded as relevant conduct of a person being considered for the children's list. It would change the phrase "conduct involving child pornography" to "conduct involving pornography", so that the scope would be wider. My amendment would then make it the same as the similar paragraph in the schedule relating to the adults' list. If noble Lords look at the equivalent paragraph later in the schedule—paragraph 9(1)(c)—they will see that all pornography is included.
	I note that this is a legal activity that is being used to consider the person for the barred list, and I do not quarrel with that at all. But I think that certain kinds of behaviour relating to pornography that is not child pornography should give the IBB cause for concern—for example, the production of pornographic material; pornography involving violence or bestiality; or, perhaps even more obviously, involvement with pornography involving adult models dressed as or behaving as children. That is not illegal—it is adult pornography—but it should certainly give the IBB cause for concern.
	My amendment would leave in the important phrase that such conduct would be relevant only if the IBB thinks that it is inappropriate. It would not cover any kind of pornographic activity that a person might take part in; it would cover only such activity that the IBB considered inappropriate for somebody who might be going to work with children in any capacity.
	I understand that these two parts of the schedule were drafted by two different departments. The stuff relating to the children's list was drafted by the DfES, while that relating to the adults' list was drafted by the Department of Health. Is it a mistake that "child" has been inserted in one section but omitted from the other? If we accept that the IBB should consider candidates for one barred list also for the other—which I know the Government have accepted—we should also consider that the same range of activity should be considered by the expert panel, to see whether it is appropriate for a person to work with children or vulnerable adults.
	I hope that that explains my reasons for wanting to see both lists exactly the same as regards this relevant activity. Child pornography, of course, is absolutely relevant for consideration by the IBB, but I think that there are also categories of adult pornography that should be considered inappropriate. The IBB should be given the duty of considering it. I beg to move.

Baroness Howarth of Breckland: My Lords, I support the noble Baroness, Lady Walmsley. When I looked at the two lists I thought it must be a typing error, because consistency would seem to be appropriate. I spent many years as a regulator for the premium rate industry and have probably seen more pornography and read more of the rather unpleasant Sunday newspapers than most of you. It is quite true that there is other inappropriate pornography. I do not mind what people do behind closed doors so long as it does not affect children or vulnerable adults. There is pornography that will have that effect. We have experts on the IBB who can make that assessment and I think that they should be allowed to do so.

Baroness Buscombe: My Lords, I have added my name to this amendment. I congratulate the noble Baroness, Lady Walmsley, on spotting this. I, too, am assuming that this is some kind of oversight. There is clearly a requirement that behavioural criteria directing inclusion on to the adults' list should match that of the children's list. At present, conduct that could lead to inclusion on the children's list includes, as we have heard, conduct involving child pornography; but for inclusion on the adults' barred list, conduct that would merit inclusion involves simply pornography. Surely any conduct involving any kind of pornography could amount to inappropriate behaviour, meriting inclusion on the lists. By removing the word "child" in this context there would be clear guidelines on pornography for the IBB in relation to both the children's and adults' lists.

Lord Adonis: My Lords, my noble friend Lord Harris was kind enough to say earlier that the process of parliamentary scrutiny had enabled us to reconsider issues that would improve the Bill. My best response to the noble Baroness, Lady Walmsley, is to say that she makes a fair and reasonable case on the discrepancy between paragraphs 4(1) and 9(1). Intensive conversations are taking place between departments on this issue. If the noble Baroness will permit me, I would like to return with an appropriate amendment in this area at Third Reading. I am not yet in a position with the authority of the Government to accept her amendments, though I fully understand her point. I would like the opportunity to come back to it at Third Reading, accepting, as I do, that she will table the same amendment at Third Reading if I should fail to do so. On that basis, I hope the noble Baroness will be content to withdraw the amendment at this stage.

Lord Harris of Haringey: My Lords, before my noble friend sits down, I hope he will recognise—perhaps I misunderstood the precise form of words that he used—that it is not simply a question of consistency between the clauses in respect of vulnerable adults and children. The very strong argument has been made that certain forms of pornography—not only child pornography—are relevant in respect of children. It is not only saying that there ought to be consistency; it is saying that there is a strong case for a wider definition.

Lord Adonis: My Lords, I think that I implicitly accepted that point. I certainly was not proposing that we would amend paragraph 9(1)(c) by changing "pornography" to "child pornography" in respect of vulnerable adults. Any change could go only the other way. I entirely accept the point that my noble friend makes. As I say, I will come back to this at Third Reading.

Baroness Walmsley: My Lords, I am most grateful to the Minister for listening once again. I echo the thanks that have already been made to him and to his colleague, the noble Baroness, Lady Royall, for the time that they have spent with their officials discussing the nitty-gritty of the Bill. It started off as a very confusing Bill, and there are still elements that are confusing, but we feel that Ministers have been listening and we are grateful for that. I shall certainly do what the Minister suggests and wait and see what comes out of his discussions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Sharp of Guildford: moved Amendment No. 4:
	Page 36, line 37, after "if" insert "he has engaged in conduct which, in the expert opinion of an appropriate professional, indicates that"

Baroness Sharp of Guildford: My Lords, in moving Amendment No. 4, I shall speak also to Amendments Nos. 5, 8 and 9. The purpose of these two pairs of amendments is to clarify the issue relating to risk of harm. In Grand Committee, my noble friend Lady Walmsley argued that paragraph 5 in Schedule 2, relating to risk of harm, was unnecessary as,
	"any assessment of risk of harm must be based on previous behaviour",
	and would therefore be covered by the range of behaviour listed in paragraph 3. She continued:
	"Conversely, any assessment of a future risk of harm not covered by paragraph 3 must be based on behaviour that has not endangered a child . . . To bar someone from working with children or vulnerable adults on the basis of something they might do in the future will inevitably raise concerns about inappropriate barring".—[Official Report, 2/5/06; col. GC 183.]
	The Minister countered by referring to the letter he had sent to a number of noble Lords on 14 April setting out clarification on the issue of discretionary barring and the risk of harm criterion. He quoted two examples. The first was that of a teacher who had downloaded pornography including within it photographs of fully clothed children in school uniform. When challenged by the police, the teacher admitted that he was sexually attracted by children. But he had of course committed no offence, and there was no evidence of his ever having attempted to involve a child in sexual behaviour. The second example quoted by the Minister was that of a teacher receiving psychiatric help who revealed under treatment that he had a sexual interest in children. In this case, the psychiatrist felt this sufficiently concerning to report it to the authorities under List 99.
	We would argue in the first case that the teacher's behaviour in downloading pornography was sufficient to bring him before the IBB under paragraph 3. This picks up on the previous amendment proposed by my noble friend, which the Minister has been good enough to agree to look at quite seriously. We admit, however, that the second case is more problematic as there was no evidence of harmful behaviour of any sort. We assume that the fact that the psychiatrist in this case reported the behaviour under List 99 does not in any sense breach medical confidence; that such behaviour on the part of the psychiatrist is acceptable; and that we should expect psychiatrists in future, under the proposals in the Bill, to do exactly the same. We would be interested to further explore this with the Minister.
	I return to the issue of evidence of harmful behaviour. The same would be true if the individual concerned had had sexual fantasies involving children even though those had not been acted upon. As the Minister said in his letter:
	"We would not wish the IBB to be in a position of having medical evidence in the form of a psychiatric report, for example, which indicates that the individual has a sexual interest in children and may be likely to act in future, but [the IBB would] not be able to consider a bar".
	Given those circumstances and the fact that the Minister rejected our original amendment eliminating risk of harm, we have sought to be more helpful in this amendment—not by seeking to remove paragraph 5 but by spelling out the way in which someone can be found to be a risk. As the amendment makes clear, the individual concerned must indulge in behaviour which, in the eyes of a professional, indicates that he might in future be at risk of harming children or vulnerable adults. Amendments Nos. 5 and 9 would spell out what sort of professional that might be. The advantage of this formulation is that it is much more specific about how risk of harm should be interpreted. We remain of the opinion that the wording in the Bill is too loose and imprecise and risks being open to abuse. I beg to move.

Lord Harris of Haringey: My Lords, at Second Reading and in Grand Committee, I expressed the strong belief that it was important that there be some mechanism to refer cases where there was a perception of a risk of harm. I cited examples from memory, from when I was chair of a social services committee. They were examples in which, with all their years of professional judgment, the professional supervising an individual about whom there was concern felt that the relationship that this individual had with a child, or a vulnerable adult, was somehow inappropriate but the professional could not actually point to specific behaviour. It seemed that capturing that professional judgment was important for the work of the IBB.
	I had the concern, similar to that of the noble Baroness, about ensuring that this is done in a way that can be reasonably validated. In fact, the noble Baroness has tabled an amendment, which is rather less restrictive than the one I moved in Grand Committee, where I had in mind a concept of two people expressing a view that there was a concern and a risk of harm. By specifying that it is a professional, and by specifying some of the categories of profession—with a degree of latitude for the Secretary of State to vary that list in the light of experience—it seems that the noble Baroness's proposal amplifies the Bill, provides protection, and clarifies what is looked for. Introducing the concept of "risk of harm" is quite a major step. Again, we want to ensure that it is got right, and I will be listening with extreme care to my noble friend's response. An amendment, perhaps along the lines put forward now, would strengthen the Bill.

Baroness Buscombe: My Lords, I certainly accept the principle of the amendment but our concern is that there could be a real problem with the burden of proof. While we do not want a culture of suspicion generated by this provision, we feel that this amendment would challenge that. At the same time, we do not want to curb employers—for example, teachers—from taking the initiative by reporting someone they consider to be harmful but without having incontrovertible evidence. We thought about this a great deal but we felt unable to put our names to these amendments, while accepting in principle the reasons behind them. We will be very interested to hear the Minister's response.

Baroness Howarth of Breckland: My Lords, I am unable to support the amendment as it is phrased. My deep concern about this Bill, as the Minister knows, is that we—some organisations—are working to enable people—usually men—who have inappropriate thoughts about children to come forward. If those who have a real anxiety about themselves in relation to children—who on assessment can be shown to be not a risk—are referred, we will find that they will not come forward. I speak as the deputy chair of the Lucy Faithfull Foundation, running the Stop It Now! helpline. Adults who are worried about their own behaviour are coming forward, but they are seriously concerned about the consequences for their whole lives and for their families. In my experience, I know that there are risks and that it would be useful if we could find some provision that would strengthen the provision. But, like the noble Baroness, Lady Buscombe, I am concerned about this amendment.

Lord Adonis: My Lords, the amendments would restrict IBB considerations under paragraphs (5) and (10), which deal with risk of harm to those cases where an appropriate expert opinion indicated that the individual may harm a vulnerable person. Where there was no expert opinion, the IBB would be required to obtain one before it could further consider the case. We entirely understand the desire of the noble Baroness, Lady Sharp, to see this provision on the face of the Bill, but I hope that I can reassure her that the practice of the IBB would meet her concerns.
	The noble Baroness's concern is, understandably, that people should not be barred on the basis of insubstantial allegations without proper professional assessment, in the case of risk of harm. We entirely agree with this position and would expect that if the information before the IBB did not provide the necessary substantiation, the IBB would always seek more information so as to establish what substance any case has. That might involve asking a relevant local agency, such as the police or social services departments, to consider a referral received or to provide other relevant evidence. This is how referrals are handled currently and the IBB will continue the practice of making any necessary inquiries in all risk of harm cases.
	There is an important additional fact in our consideration. The IBB will be an expert body and will be able to assess the case once the evidence has been assembled. While the IBB will in most cases have the professional expertise to fulfil this role either from its members or the staff it employs, it would also be enabled to seek expert opinion or assessment externally where necessary, and we would expect it to do so in cases of this kind.
	I hope that that clarifies the Government's position and addresses the issues raised. We entirely support the noble Baroness's objective but we think that to specify in such detail the precise sources of professional advice which should be secured by the IBB would not be appropriate.

Baroness Sharp of Guildford: My Lords, will there be details in the guidance to the IBB about seeking further information on cases where it is uncertain about risk of harm?

Lord Adonis: My Lords, I need to come back to the noble Baroness about whether we would issue formal guidance to this effect. It seems to us inconceivable that the IBB, as an expert body, with a membership that we discussed earlier, would not seek to behave in this way. We do not believe that any reasonable professional body with such a membership would not seek to do so. However, I will come back to the noble Baroness about whether we will issue formal guidance. It is so much our expectation that the IBB should behave in this way that I do not see there will be any difficulty on our part in doing so if that would help meet the noble Baroness's concern.

Baroness Sharp of Guildford: My Lords, I thank the Minister for his reply and noble Lords who supported us. The difficulty we are confronted with in paragraph (5) of Schedule 3 is the sheer uncertainty of precisely what "risk of harm" means. I take on board the points that the Minister has made; we will be looking for clarification from him on whether guidance will be issued. We take on board what he says about the composition of the IBB, but there are difficulties, when experts assess people at third hand, regarding the degree to which the IBB can probe further on some of the information it receives. We will be looking at the guidance that might be issued by the department. We will look at the Minister's answer when he comes back to us.

Lord Adonis: My Lords, I will write to the noble Baroness after today's sitting. I hope that that will satisfy her.

Baroness Sharp of Guildford: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 5 not moved.]

Baroness Sharp of Guildford: moved Amendment No. 6:
	Page 36, line 42, at end insert—
	:TITLE3:"Under 18s
	(1) The IBB cannot include a person under the age of 18 in the children's barred list without that person having the right to representations and the IBB must undertake an age-appropriate risk assessment process.
	(2) If a person is included on the children's barred list under the age of 18, his case will be reviewed when he reaches the age of 18.
	(3) If a person is included on the children's barred list under the age of 18, his needs will be assessed and appropriate therapeutic services provided."

Baroness Sharp of Guildford: My Lords, the purpose of this amendment is to distinguish under-18s from other offenders who might be barred by the IBB, and to ensure that their issues are treated differently. Once again, this issue was raised in Grand Committee, and in response to my noble friend Lady Walmsley the Minister made it clear that no person under the age of 18 would be included on either list automatically. He said:
	"There may be mitigating circumstances which mean that it will not be appropriate in every case to include young people who commit offences on a barred list without the right to make representations . . . He or she may not present a risk of harm to children in general and therefore may not be an appropriate person to automatically be included in the children's barred list. Consequently, we do not intend that those under the age of 18 when the relevant offence is committed should be included on either list automatically. Instead, they would be dealt with under a discretionary route, with a right to make representations. I assure the noble Baroness that we will consider this when making regulations to cover the prescribed criteria for automatic inclusion"—[Official Report, 2/5/06; col. GC 187.]
	He also made it clear that the filter requiring leave to make representations would still apply, and that the IBB would not be required to conduct a full review including representations unless there was new evidence to be assessed. This amendment challenges that conclusion, and asks for a full review to be undertaken on all cases of under-18s included on the barred list when they reach the age of 18. In addition it requires that all those under 18 who are on the barred list receive therapeutic treatment to help alter their behaviour.
	Our reason for asking this is that it is important to remember that these young children are not young sex offenders. Most are not motivated by a sexual preference for children, although such behaviour can become entrenched. Rather, the behaviour is the response of a very vulnerable set of children to their own experiences and difficulties; it is a way of expressing anger and exerting power on the part of those with complex issues and needs. Such children are still in the process of maturation, and can be helped away from spiralling patterns of sexual abuse. While we need to acknowledge the risk these children pose to others, we must also acknowledge that these are children with severe needs who need help and specialised services themselves. What is more, there is clear evidence that such help can and does change behaviour for the good.
	These worrying policy developments have seen a move away from a child welfare approach with regard to under-18s to a criminal justice approach. The problem is clearly that the Department of Health and the Home Office come to these areas from different starting points. We believe that it is essential that child protection and criminal justice agencies work together, and that there is a clear obligation on social services departments to respond to this group of children and young people from the child protection perspective. Children and young people going down the criminal justice route are unlikely to be adequately assessed in terms of their own needs.
	The outcomes of these different routes are inevitably very different. Behaviour can result in no further action under social services, whereas a custodial sentence can lead to a child being placed on the sex offenders register. It is important to recognise that the models of risk assessment for an offending child and those for an offending adult are very different. Children are still in the process of developing and maturing, and their lives may be in constant change. It is important that there is an appropriate risk assessment, with a model in place that is clearly appropriate to the under-18s. If these children have been found to be sexually harming we need to offer them services to help them change their behaviour, and, if we do so, we need to give them a chance to lead a life that is not stigmatised by early misdemeanours. I beg to move.

Baroness Buscombe: My Lords, I have considerable sympathy for the amendment which would, as we have heard, prevent the IBB containing anybody under the age of 18 without their having had the chance to make representations first.
	While we do not take the view that a crime committed by a person aged between 16 and 18 is any less serious than a crime committed by somebody over 18, there is a strong argument for intervening early and putting a stop to self-perpetuating abuse.
	We would not want to get into a debate on diminished responsibility due to age, but it is possible to help those young people who commit abusive crimes to rehabilitate. Placing them on a list will only slow down that process. We therefore support the noble Baroness's amendment.

Baroness Howarth of Breckland: My Lords, I support the noble Baroness's amendment. In the 1980s the NCH produced a report on children who abuse other children in which it outlined the issues which are encapsulated in the amendment. There is a wide variety of young people with a wide variety of offences. There is a paucity of experts who can assess those young people and very little therapeutic help. Following the report there was an attempt to put a series of projects in place, which, unfortunately, disappeared over the years, and have still not been replaced.
	There is one hope. A young burglar is likely to grow out of being a burglar; a young sex offender is very unlikely to grow out of sex offending without therapeutic help and assessment—the sad fact is that without help they are more likely to continue offending. However, given the wide range that I have mentioned, it seems totally appropriate that the IBB should review a case when the relevant person is 18. I note that the amendment proposes simply a review. It proposes not that if a young person continues to be viewed as dangerous—as is the case with some young people—their case should be reviewed, but that we should treat young people and children as such and should not condemn them to a long life of inclusion on a register that will affect their employment, relationships and whole future.

Lord Adonis: My Lords, the amendment of the noble Baroness, Lady Sharp, has three distinct elements. The first is the right of those under the age of 18 to make representations in all cases without exception. The second is their right to have those cases reviewed at the age of 18 and the third is to provide for mandatory assessment of need for such young individuals. I believe that I can more than meet the noble Baroness in the first respect and I hope that I can give her sufficient reassurances in the second and third respects in relation to the issues that she raised.
	We entirely agree with the noble Baroness that it would not be appropriate for those under the age of 18 to be automatically included in the children's barred list without the right to make representations. Indeed, we would wish to go further than that and ensure that no juvenile under the age of 18 could be included in either list—the children's list or the vulnerable adults' list—automatically without the right to make representations. The regulations that we will make under paragraph 19 of Schedule 2 will ensure that that is the case and that there is a right for juveniles to make representations on their inclusion in either list.
	Where somebody who is under 18 has committed one of the specified offences, the IBB would consider this under a discretionary route, allowing the individual to make representations. The IBB will, as with all discretionary cases, need to make a judgment whether the individual poses a risk to vulnerable groups and whether it is appropriate to include them in either or both barred lists.
	The second proposition is that under-18s who are included on the children's barred list will have their case reviewed when they turn 18. That raises the possibility that somebody could be included on the list in this scenario just before their 18th birthday and then undergo an almost immediate IBB review of their case at their 18th birthday. We do not think that that would be a satisfactory regime so we are not drawn to the precise wording of the noble Baroness's amendment but we have sympathy with the position that she has set out.
	We have, however, already considered how to deal with reviews within the barring scheme and have a policy which we believe makes adequate provision for younger individuals. Our intention is to specify a minimum barring period following an IBB decision. The current barring schemes and other similar barring mechanisms, such as disqualification orders made by courts, have a minimum barring period of 10 years for adults and five years for juveniles. This would be our starting point for consultation: a minimum barring period of five years for juveniles, which is a substantially reduced period compared to that which applies to adults.
	However, after taking further advice from professionals in the field, we are considering a shorter minimum barring period for those under 25 to reflect maturity issues. Again, we would consult on this age boundary before setting it in regulations. Once the minimum period has expired, the individual may request a review of their case and make any representations which support their removal from the list. If an individual chooses not to request a review after the minimum barring period, presumably on the basis that their case would not be strong enough, there would be nothing to stop them applying for a review at a later date, once they felt they had sufficient evidence that they were no longer a risk. This is intended to introduce an element of flexibility for the individual and to ensure that the IBB's time is spent considering cases of substance, rather than those resulting from an administrative trigger of the kind envisaged in the amendment.
	The final section of the amendment would require an assessment of the needs of anyone under 18 who is included on the children's barred list, and the provision of appropriate therapeutic services. This is a much more complicated proposal. We have great sympathy with the arguments put by the noble Baronesses, Lady Sharp and Lady Howarth, in this regard, but we do not consider that the IBB's role should be assessing needs or providing therapeutic services. The IBB must focus on vetting and barring to protect vulnerable adults and children from abuse by those who would work with them.
	We assume that the amendment would require referral to existing service providers, such as the NHS, local authority children's social care services or appropriate charitable organisations. Again, this does not fit with the IBB's primary role and it would be unhelpful that an IBB referral to a therapeutic service provider is made at the end of a process. The IBB's decision is based on information from police, sector bodies, employers, courts and other sources, any or all of which will have been able to advise the individual to seek medical or psychiatric help at earlier stages—of course in all such cases, the earlier, the better. To make an assessment compulsory for juveniles upon barring is not the most effective way to help these individuals and would add an additional set of processes where there are already established routes to access help of this kind, such as child and adolescent mental health services and the requirement on local authorities to safeguard and promote the welfare of children in need.
	On the basis that I have been able to meet the first of the noble Baroness's concerns and to offer reassurances on the second and third, I hope that she may feel able to withdraw the amendment.

Baroness Sharp of Guildford: My Lords, I thank the Minister for his lengthy reply. I am delighted that he accepts the first issue: the rights of young people to make representations. I take it that that will be made clear in guidance to the IBB.

Lord Adonis: My Lords, actually it will be stronger than that, because it will be in regulations. So it will be a requirement on the IBB, not simply guidance.

Baroness Sharp of Guildford: My Lords, I am grateful and even more pleased. In relation to the second issue, I understand that the Government are considering setting a shorter barring period for under-25s. Will the Minister let us know when that has been decided? Are we likely to know before the Bill completes its passage through the House?

Lord Adonis: My Lords, the consideration is ongoing; but I shall seek to let the noble Baroness know before Third Reading how our thinking has developed.

Baroness Sharp of Guildford: My Lords, it would be helpful if the Minister could let us know. Obviously we would like to see a shorter barring period of, say, three years. This would apply to those who are under 18, as distinct from under 25. The Minister raised the case of someone barred just before their 18th birthday, but for those who are barred from the age of 15 or 16 it could be important in terms of the career that they seek to develop. A three-year bar would be far more appropriate. It would give them a chance to embark on proper training, which is the sort of thing that we are concerned about.
	We accept entirely that it is not the IBB's role to police the provision of therapeutic services. Equally, because it is so important that young adults—the under-18s—receive therapeutic services, it would be extremely helpful if the IBB could check at some point whether the appropriate authorities are providing them. We know that frequently such matters fall between the stools of the responsibilities of different services. The police do not do it because they think the social services are doing it, and the social services do not do it because it has come up through a psychiatrist in the NHS. Nobody makes sure that those therapeutic services are being provided to the young adult.
	We will withdraw the amendment but it would be good if the Minister could reconsider the issue and reassure us, perhaps in guidance, that the IBB would satisfy itself that such services were being provided.

Lord Adonis: My Lords, I will happily add that to the list of things that I shall write about to the noble Baroness.

Baroness Sharp of Guildford: My Lords, with those reassurances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe: moved Amendment No. 7:
	Page 37, line 9, at end insert—
	"( ) An individual automatically included on the barred list will have the right to appeal his or her inclusion on the finding of fact or by reference to a point of law.
	( ) Automatic inclusions shall be subject to a status review after a period of no less than 5 years."

Baroness Buscombe: My Lords, noble Lords may recall our debate in Grand Committee regarding the possibility of appeals based on findings of fact. As I explained, the amendment would give an individual who has been automatically included on the barred list the right to appeal the decision regardless of whether the IBB wishes to receive the appeal. It would also place a duty on the IBB to monitor the rehabilitation progress of those included on its list by reviewing the status of automatically listed individuals every five years.
	I hope that I assured Members of the Grand Committee that the amendment was not intended to give individuals who have committed heinous crimes an easy ride. It was intended to preserve the integrity of the IBB and to ensure that it functions to the very highest standards.
	The Minister's response to our concerns regarding findings of fact was very welcome. He said that he was giving "intensive" consideration to the issue of appeals. On our amendment proposing to allow an application for review following a period of no less than five years, again the Minister's response was constructive. He said:
	"On the minimum period within which an individual may not apply for a review, we [the Government] intend to use regulations to make provision for a review period of five years in the case of under-25s, to reflect developing maturity, and 10 years for those over 25".—[Official Report, 02/05/06; col. GC 196.]
	We were very pleased with that statement and with the Minister's response to the amendment tabled by the noble Baroness, Lady Sharp.
	Following the Minister's "intensive" consideration, we were pleased to receive from him in this morning's internal post an information note on appeals—for which we are grateful and to which he will no doubt refer—and an explanation of his amendments grouped with mine. I am grateful to the Minister for responding very positively to our concerns on appeals on findings of fact and for his co-operation on these important points.
	However, I would like to detain the House a little longer to probe further on the status of employers during the investigation and decision-making process. I am sure that noble Lords will remember the debate in Grand Committee on the status of employees. The noble Baroness, Lady Walmsley, tabled an amendment—I believe it was Amendment No. 58—which would have given employers the right to initiate appeals of an IBB decision. The Minister's reply then prompted an interesting research project on employment law on behalf of Her Majesty's Opposition. The Minister stated in Grand Committee:
	"Nothing in the IBB's decision not to bar an individual limits the right of a specific employer not to employ a specific individual. I should stress that point. It cannot be emphasised enough that a decision by the IBB not to bar someone is quite separate from the decision of an employer as to whether or not to employ them in the full knowledge of their past history . . . We would expect employers to take their duties in that regard very seriously indeed, irrespective of any decisions of the IBB not to bar an individual".—[Official Report, 2/5/06; col. GC202.]
	Reassuring as those words are, I could not help but imagine a case where an employer turns down an otherwise perfect candidate for a job, or a person is made redundant from a job that is in no way a regulated activity, due to their inclusion on a barred list. While it is not my intention to make life easy for those whose crimes merit inclusion on one or both of the barred lists, I am anxious about the state of employers. The main question is: could inclusion on a barred list lead to unfair dismissal representations from any job or a dismissal that will see the employment tribunals and employers under pressure? Unless the job is a regulated activity, inclusion on a barred list should supposedly have no bearing on employment decisions; therefore, I would be grateful for confirmation of that from the Minister. If a job is not regulated, can an employer dismiss someone from it on grounds of lack of faith or no-confidence on finding that an individual is on a barred list?
	If an individual is working in a regulated activity and commits a crime which ends up with his inclusion on the list, the position is clear: an employer will have the right to dismiss that individual on the basis of misconduct. It would be deemed fair for the purposes of statutory unfair dismissal protection, on the basis that continued employment would be against the law.
	However, my interest is in the read-across to employers who are not regulated activity providers. How does the Minister envisage the information on the lists fitting into current employment law? There is clearly a risk that misinformation and, worse, prejudice could lead to employment malpractice. Employers have a duty of mutual trust and confidence in relation to their employees, which must be balanced with a duty to take care to protect vulnerable people from harm. That is just as much a problem for regulated activity providers as it is for non-regulated providers.
	In Gogay v Hertfordshire County Council, 2000, the employers in question were in breach of the implied mutual trust and confidence because they had no reasonable grounds to suspend the plaintiff and failed to carry out a proper investigation of the circumstances before suspending her. That is a case for diligence on the part of the employers.
	There is a distinction to be drawn between that process of investigating whether a vulnerable person is at risk of significant harm and the process of dealing with an employee who may be implicated in that risk. But this Bill takes no account of those issues and simply renders it unlawful to employ an individual who is debarred. In terms of regulated activity, the employee's only recourse is at the stage of being barred, not during the consequent action of the employer. However, if an allegation is not investigated at the relevant time, and a vulnerable person suffers as a result, there could be a charge of negligence.
	Let us consider the other side of the argument: where an individual has been investigated and found to be innocent of any wrongdoing, yet is subsequently dismissed or refused employment. On that point, we fully support Amendment No. 28, tabled by the noble Baroness, Lady Walmsley, which we shall come to in due course. The Minister proposes to bring forward provisions to ensure that malicious or vexatious accusations are considered as part of an IBB inclusion. I believe that those amendments have already been agreed to today. They should at least give an employee the right to bring a charge of defamation against an individual for making false or defamatory statements, and the employee could bring a claim against an employer for a breach of the duty of mutual trust and confidence for making or acting on a false allegation. The law is in some ways clear. My anxiety is that the Bill could generate a blame culture that sees employers unwilling to employ and people unwilling to work in a culture that threatens rather than supports job status. I beg to move.

Baroness Walmsley: My Lords, I rise to speak to Amendment No. 27 in this group. I thank the Minister for listening to the arguments put forward by the noble Baroness, Lady Buscombe, about the need to allow finding of fact appeals. I hope that part of his decision to table Amendment No. 20 was based on the suspicion that otherwise the Bill would be non-compliant with the European Convention on Human Rights. Having said that, if the appeals tribunal is going to be hearing appeals not just on points of law but also on finding of fact, we need to be reassured that the personnel on the tribunal have the appropriate expertise to make those decisions. That is why I have introduced Amendment No. 27, which is similar to an amendment that I tabled in Grand Committee, to specify some of the areas of expertise that should be represented on the Care Standards Tribunal when it is hearing appeals on both law and finding of fact points.
	It is vitally important that the members of that tribunal know what they are talking about when they are looking at issues of fact. I am aware, thanks to the explanation from the Minister in his recent letter to us, that situations where the facts have already been established by a competent authority such as the courts will not be allowed because those issues have already been raked over and a competent authority has found those facts to be correct. We are talking about situations where considerable discretion and understanding of the issues may be needed in looking at whether the facts of the matter were correct.
	That is why I have reintroduced the amendment and asked for it to be grouped along with the Minister's amendment introducing appeals based on the finding of fact. I understand that the care standards commission consists of about 100 people; about 20 legal people and 80 lay people. But we do not know about the expertise of those lay people. Does it include a sufficient range of people who have the sort of expertise to carry out the new appeals that will be asked of them? My intention with the amendment is to ensure that the appropriate expertise is there on the tribunal that will hear the appeals.

Lord Adonis: My Lords, in replying to the noble Baroness, Lady Buscombe, on Amendment No. 7, and the noble Baroness, Lady Walmsley, on Amendment No. 27, I will speak also to government Amendments Nos. 20, 21, 22, 24 and 25. I will also deal with the impact on employment status of employing on the basis of disclosure of information, which was the wider issue raised by the noble Baroness, Lady Buscombe, and which has been of concern to her.
	Amendment No. 7 and the government amendments relate to the grounds for appeal against IBB decisions. This issue was debated both at Second Reading and in Grand Committee. Concerns were expressed that appeals should not be limited to points of law when decisions are being taken about such a serious matter as barring individuals from the entire children's workforce and vulnerable adult workforce. The Government have given a good deal of consideration to the points made and wider issues raised and our Amendments Nos. 20, 21, 24 and 25 have been introduced to extend the current provision to allow appeals on points of fact, in addition to appeals on points of law. In a note I sent to the noble Baroness, Lady Buscombe, and copied to other noble Lords yesterday, I set out at some length our thinking on the issue of appeals.
	New subsection (1A) provides that an appeal may be brought on the ground that the IBB made a mistake on a point of law or on any finding of fact which it has made and on which its decision was based. The appeal must be subject to leave being granted by the Care Standards Tribunal to avoid appeals which are frivolous or vexatious or unlikely in the opinion of the IBB to succeed.
	An individual will not be able to dispute findings of fact which have been established in a court of law, or as a result of their acceptance of a caution for an offence—which is an admission that they committed the offence. We would not wish the scheme to allow an individual to, in effect, rerun the earlier arguments considered by a court. Findings of fact made by a competent body, such as the General Medical Council, or the General Teaching Councils for England and Wales—the full list is given in paragraph 12(4) of Schedule 2—will also not be subject to appeal. The competent bodies all have robust processes of decision-making, including oral hearings, prior to reaching their decisions. Again, we would not wish to rerun a set of arguments which were considered by, for example, the General Medical Council or the General Teaching Council as to why a doctor or teacher should or should not have been struck off.
	But the IBB is not only a fact-finding body. It has the very important function of deciding whether, on those facts, it is appropriate for a person to be excluded from regulated activity relating to children or vulnerable adults or both. That is an expert function, and we intend the IBB to have the expertise in its composition to determine those matters. We want the IBB to be the body which has this role, rather than a separate body on appeal.
	The effect of new subsection (1B) is that the exercise of the IBB's discretion in this matter—that is, deciding whether or not it is appropriate for a person to be included in a barred list—is not a ground on which an appeal may be made to the Care Standards Tribunal. Of course if, in coming to its decision on appropriateness, the IBB made an error of law or on any finding of fact, there could be an appeal under the amendments.
	Together, the effect of these amendments will be to give a wider right of appeal in cases where there is a dispute on points of fact. That will ensure that there is a right to appeal where issues of fact are disputed and will therefore enhance transparency and public understanding of the scheme as a whole.
	Amendment No. 7, moved by the noble Baroness, Lady Buscombe, would allow appeals for those automatically included on a barred list for a small number of the most serious offences, such as rape of a child. I explained in some detail at Second Reading and in Committee why we felt that an appeal would be unnecessary in such extreme cases and I hope the noble Baroness will be satisfied with that position.
	The second part of Amendment No. 7 would place a duty on the IBB to review automatic barring cases after no less than five years. The information note which I circulated prior to the Committee stage indicated that we would use as our starting point for consultation the 10-year period under the current schemes, with a shorter period for younger individuals, as I said in our earlier discussion. We are open to further discussion on this issue and will consult but we feel that consultation and regulations are the right way to handle review periods, allowing a degree of flexibility to adapt to circumstances, rather than including a requirement in the Bill.
	Finally, government Amendment No. 22 removes the provision that an individual is kept on the list in the absence of an IBB decision. That also reflects discussion in Grand Committee. We recognise that there is a technical difficulty with Clause 4(2): notably, that there is no mechanism for an individual to come off the list in such cases. That is part of the detail of IBB processes which will be dealt with as a package of measures in regulations under paragraph 11(1) of Schedule 2, following consultation.
	On the issue of the composition of the Care Standards Tribunal raised under Amendment No. 27 by the noble Baroness, Lady Walmsley, we entirely agree with her that it is essential to ensure that panels considering appeals against decisions made by the IBB have the right experience and expertise in relation to each case being considered. As the House will know, the composition of the Care Standards Tribunal is determined by regulations. These will need to be adjusted to reflect the new range of appeals that the Care Standards Tribunal will be handling once the new vetting and barring scheme is available, and we shall certainly take account at that point of the views expressed today and in earlier debates on what types of expertise should be available. That, of course, includes all the categories of membership set out by the noble Baroness in her amendments.
	The Care Standards Tribunal currently considers appeals from those included on the existing lists. It already contains a number of members with experience of vulnerable groups. When appointing a lay panel for a tribunal, regulations provide that the president of the tribunal must nominate members who appear to him to have experience and qualifications relevant to the subject matter of the case. To give the president of the tribunal the ability to select appropriate lay panel members for each case, the current regulations provide for individuals to be experienced in one of the listed areas of expertise. Examples of the type of experience required include: experience in the education sector or the health sector; conducting disciplinary investigations; being a member of a child protection committee or similar; and experience of child protection conferences or negotiating the conditions of service of employees. We will consult further on this issue and ensure that the existing secondary legislation to provide for the Care Standards Tribunal lay panel membership is amended as appropriate to include any additional expertise necessary for the tribunal to fulfil its extended remits. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.
	Finally, the noble Baroness, Lady Buscombe, expressed concern about employers and the decisions that they take on the basis of disclosure of information. Employers already decide not to employ someone on the basis of information obtained on disclosure or by other means where an individual is not barred. However, any employment decision is open to challenge on the basis of discrimination, whether or not it is within the scope of barring schemes. It is, we believe, only right that individuals have the right to challenge an employer's decision not to employ someone if, for example, they are the subject of race or sexual discrimination. We do not believe that this position is changed at all by the additional provisions in the Bill.

Baroness Walmsley: My Lords, before the noble Baroness replies, I thank the Minister for his reassurances about the composition of the Care Standards Tribunal. I find them extremely satisfactory, so I will not move Amendment No. 27 when we come to it.

Baroness Buscombe: My Lords, I will be brief. I thank the Minister for his response to my Amendment No. 7. I entirely accept what he says, and I am extremely pleased with the government amendments, which the Minister has laid before the House today, on appeals on findings of fact. I feel that we have made real progress on this part of the Bill, and I am grateful to the Minister for that.
	I am also grateful to the Minister for allowing me to set out our concerns about employment law and employer versus employee, and to ask some of the questions that I thought about in response to some of the statements that the Minister made quite openly and quite rightly in our debates in Grand Committee. I think it is important to ensure that, during our consideration of the Bill, we are as clear as possible about the relationship between employer and employee and whether an individual is on a barred list or is undertaking a regulated or unregulated activity. At the end of the day, the employer and the employee need certainty, and our research on the issue between Grand Committee and today's debate, as well as the Minister's response, have contributed to that certainty. On that basis, and with pleasure, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 8 and 9 not moved.]

Lord Adonis: moved Amendment No. 10:
	Page 38, line 26, at end insert—
	" (1) IBB must ensure that in respect of any information it receives in relation to an individual from whatever source or of whatever nature it considers whether the information is relevant to its consideration as to whether the individual should be included in each barred list.
	(2) Sub-paragraph (1) does not, without more, require IBB to give an individual the opportunity to make representations as to why he should not be included on a barred list."

Lord Adonis: My Lords, I am glad to see the noble Lord, Lord Rix, in his place as he has played a great part in the genesis of this amendment. So, indeed, have other noble Lords present who raised concerns that led to considerable debate both at Second Reading and in Committee about the relationship between the vulnerable adults list and the list of those barred from working in the children's workforce.
	Amendment No. 10, which owes a good deal to the discussions we had at Second Reading and in Committee, makes explicitly clear in the Bill what we believe is already implicit there, that the IBB should consider any information it receives in relation to both lists—that is, the children's workforce list and the list of those barred from working with vulerable adults. IBB experts will then exercise their judgment in deciding whether the information merits being taken to further consideration in which the individual would be invited to make representations on that information, which could be in relation to either or both lists. I set out our thinking on the issue when I met the noble Lord, Lord Rix, and have mentioned it to other noble Lords in our discussions. I hope that it will meet the legitimate concerns raised that there should be proper consideration of cases that are referred for both lists, not simply for one. I beg to move.

Baroness Buscombe: My Lords, I rise to speak to my Amendment No. 19, which is grouped with government Amendment No. 10. I am pleased that the Minister has brought forward that amendment in response to the debates at Second Reading and in Committee. That is welcome, and I am pleased that the amendment goes further than our original amendment by imposing a duty on the IBB to cross-reference. On reflection, at Second Reading several noble Lords expressed a preference for a single list. There was a strong feeling across the House that if an individual is not suited to be with children then he or she is certainly not suited to be with vulnerable adults. My amendment was tabled in the light of the Minister's reply at Second Reading and the notes that he kindly forwarded to noble Lords before the Committee stage.
	A central tenet of the new scheme is to establish more consistent information sources with a strong read-across to both lists. Although an individual may in some circumstances present a risk to children or vulnerable adults, but not to both groups, there will invariably be many circumstances in which a person presents a risk to both groups and should be included on both lists. That was the concern expressed so eloquently by a number of noble Lords. The Minister's pre-Committee information note on automatic barring stated that the list of offences in each case will be consistent with offences resulting in an automatic bar without representations with respect to children leading to an automatic bar with representations with respect to adults, and vice versa. My concern was then to ensure that the dialogue, or read-across, should be explicit. With the Minister's amendment, I now believe that to be the case.

Lord Rix: My Lords, in Committee I asked the Minister if it would be possible to see him, as it were, in the department to discuss the read-across or whether there should be a single board. I realise that my amendment was unacceptable because of the Human Rights Act, but I am happy to say that I did attend the meeting with the Minister and members of his department, as did the noble Lord, Lord Carter, who unfortunately is not in his place today.
	I have to say that it was the shortest meeting that I have ever attended. We did not even have time for a cup of coffee. I walked into the room, was introduced to the members of the department and the Minister then assured me that this amendment was going to be brought forward. With that assurance, I am very glad to support Amendment No. 10. If the noble Baroness, Lady Buscombe, wishes to pursue Amendment No. 19, I am happy to support that also because, having lost my trousers 12,000 times down the road at the Whitehall Theatre, I believe in the cause of belt and braces and I think that her amendment would provide the necessary braces for the belt which has been offered by the Minister.

Lord Harris of Haringey: My Lords, on a similar theme of belt-and-braces provision, I have a question to put to my noble friend at the Dispatch Box. This is an amendment to line 26 on page 38. Does a parallel amendment need to be made at line 42 on that page? This is being inserted following the clause covering the risk of harm to vulnerable adults, so should there not be a similar amendment covering the risk of harm to children? I simply do not know the answer because I have the advantage in this House of not being a lawyer. It may turn out that the point is covered by the wording; it certainly seems very helpful.
	Perhaps I may also share with the House that my experience of meetings with my noble friend is not dissimilar to that of the noble Lord, Lord Rix. When I first went to see him to express some general concerns about the Bill, we were in and out in around 10 minutes. My noble friend recognised that one or two issues would need to be looked at, but again the promised cup of tea was slower to arrive than the Minister's response to the issues I put to him. However, I am grateful for his response today because it addresses issues that were raised in Grand Committee and I seek clarification only on whether the approach is not flawed because it has not been repeated in the clauses referring to children.

Baroness Walmsley: My Lords, I can share with the House that I have not had a cup of tea from the Minister either. However, I thank him for bringing forward Amendment No. 10. I would say that, wouldn't I? It achieves pretty well exactly what Members on these Benches were arguing for in Grand Committee. It is therefore very welcome. This is the level at which we felt it was right to do the read-across: relying on the expertise of the IBB.
	I too will be interested to hear the Minister's response to the question just posed by the noble Lord, Lord Harris of Haringey, because this has to be a two-way street.

Lord Adonis: My Lords, I should stress that I don't accept cases made to me very rapidly so as to avoid offering hospitality to noble Lords when they come to visit me in the department. The tea in the Department for Education and Skills is excellent, and I would be more than delighted to invite noble Lords to come and partake of it, whether they wish to discuss amendments to this or any other Bill.
	I am glad that our decision in this matter has been so warmly received. I am told that the point raised by my noble friend Lord Harris is entirely met in the drafting. It is met in such a complicated way that I cannot explain it to him from the Dispatch Box, but I will do so later. However, the note from the Box states that the point is met entirely and it is indeed a two-way street. I hope my noble friend will feel able to accept my reassurance on the point.

Lord Harris of Haringey: My Lords, I would be grateful to my noble friend if he did not attempt to explain it to me. However, if he goes on to explain it to the satisfaction of a lawyer, I shall be delighted.

On Question, amendment agreed to.

Baroness Walmsley: moved Amendment No. 10A:
	Page 38, line 26, at end insert—
	"When an individual is included in a barred list IBB must take all reasonable steps to notify the individual of that fact."

Baroness Walmsley: My Lords, Amendment No. 10A follows on from a very similar amendment, Amendment No. 54, which I moved in Grand Committee. On that occasion the Minister was kind enough to say that he agreed with the principle of what I was trying to achieve and would consider the matter further. I am now led to understand that this new wording in the amendment may well meet with the Government's approval and I thank him for that indication. However, before he rises to respond and to tell us whether the Government approve of the wording, can he give me reassurances on two small points?
	First, will the information sent by the IBB to the person to be put on the barred list state clearly not just that he or she is barred but exactly what activities he or she is barred from, and, secondly, will the recipient have to sign for the letter? In other words, we need to be assured that the letter has been received by the person concerned and is not lying on the doormat at an address which the person lived at three years ago. We need to be quite sure that the person has received the information, because a number of criminal offences will ensue if he or she does not know that they are barred and what they are barred from. I hope that the Minister will be able to clarify those points. I beg to move.

Lord Adonis: My Lords, the noble Baroness raised this important issue in Grand Committee. The Government have considered the issue and believe it is right that there should be an explicit duty in the Bill on the IBB to take all reasonable steps to notify individuals when they are included on a barred list. On that basis we are happy to accept the noble Baroness's amendment. The notification to individuals will, of course, say which list they are on and give details of what that means in terms of the areas of work from which they are barred.
	However, I cannot immediately give the noble Baroness an answer to the second point. I am not sure whether the "all reasonable steps" referred to in the amendment would include a requirement to sign for receipt of the notification, but I will let her know immediately after these proceedings whether that is the case. But we believe that it is absolutely right that all reasonable steps should be taken to notify individuals. Making that explicit in this way will underline the absolute importance of individuals knowing what their status is.

Baroness Walmsley: My Lords, I am most grateful to the Minister and I look forward to his clarification on my second point.

On Question, amendment agreed to.

Lord Adonis: moved Amendment No. 11:
	Page 39, line 17, at end insert—
	"( ) The Secretary of State may by order amend sub-paragraph (4) by inserting a paragraph or amending or omitting a paragraph for the time being contained in the sub-paragraph."

Lord Adonis: My Lords, I will also speak to Amendments Nos. 12 to 18, 23, 26, 29 to 32, 36, 54, 58 to 64 and 70. These are all minor and technical amendments, and I circulated a note to noble Lords before Report in which I explained the Government's intention behind them all.
	Amendment No. 11 allows the Secretary of State to prescribe in secondary legislation additions to the list of bodies in paragraph 12(4) of Schedule 2, which we discussed in an earlier set of amendments. A person is not able to challenge findings of fact made by these bodies, which include the General Medical Council and the General Teaching Councils for England and Wales, when making representations to the IBB against their inclusion on a barred list. However, the list of bodies may need to change as new bodies are formed and the competencies of the current bodies change. This amendment allows for flexibility to respond to such changes.
	Amendments Nos. 12 to 18, 23 and 26 make a minor drafting change to the Bill. "Permission", in the context of permission to make representations or permission to apply for a review, is a more up-to-date term than "leave", and reflects the terminology used in the rules of court.
	In respect of Amendments Nos. 29, 36 and 54, it has been made clear to us that the Bill, as currently drafted, may prevent an individual from frequently visiting his child in a children's establishment such as a children's hospital and thereby having contact with other children if the individual is barred or he has not applied to be monitored. Clearly this is not the intention of the legislation, and these amendments seek to correct this drafting error. They ensure that an activity carried out in establishments included in Clauses 18 and 19 and in Schedule 3 is not a controlled or a regulated activity unless it is carried out for the purposes of the establishment.
	Amendment No. 30 is a technical amendment to ensure that all inspectors of healthcare establishments that provide treatment or therapy for children are included in the definition of regulated activity relating to children. Without the amendment, only those inspecting NHS bodies are included.
	Amendment No. 31 is a technical measure to ensure that paragraph 2(2) of Schedule 3 covers both paid and unpaid employment. Without this amendment, a manager in a charity shop may be required to be vetted if a 17 year-old is to volunteer once a week, or a lawyer may be required to be vetted before a 17 year-old can work-shadow him for a two-week work experience placement. It is important that we do not discourage employers from offering children valuable opportunities of working, and this amendment seeks to ensure that that objective is fulfilled.
	Amendment No. 32 restores the full reference to the Care Standards Act 2000, which was lost as a consequence of an amendment tabled in Grand Committee. Amendments Nos. 58 to 64 change references to "information monitor" to "independent monitor". The name of the monitor has been changed simply to avoid confusion with the Information Commissioner. Amendment No. 70 is a technical amendment to remove the reference to being subject to monitoring in relation to a "controlled activity" from Clause 46, the interpretation clause. The definition in Clause 46 refers to Clause 21, which only defines being,
	"subject to monitoring in relation to regulated activity".
	No definition is required for monitoring in relation to controlled activity, as the Bill does not use the term. These, as I say, are minor and technical amendments. I hope they are acceptable to the House. I beg to move.

On Question, Amendment agreed to.

Lord Adonis: moved Amendments Nos. 12 to 18:
	Page 39, line 25, leave out "leave" and insert "permission"
	Page 39, line 37, leave out "leave" and insert "permission"
	Page 39, line 38, leave out "leave" and insert "permission"
	Page 39, line 42, leave out "leave" and insert "permission"
	Page 39, line 43, leave out "leave" and insert "permission"
	Page 39, line 45, leave out "leave" and insert "permission"
	Page 40, line 1, leave out "leave" and insert "permission"
	On Question, amendments agreed to.
	Clause 3 [Barred persons]:
	[Amendment No. 19 not moved.]
	Clause 4 [Appeals]:

Lord Adonis: moved Amendments Nos. 20 to 26:
	Page 2, line 18, leave out "on a point of law"
	Page 2, line 25, at end insert—
	"(1A) An appeal under subsection (1) may be made only on the grounds that IBB has made a mistake—
	(a) on any point of law;
	(b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based."
	(1B) For the purposes of subsection (1A), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact."
	Page 2, line 26, leave out subsection (2).
	Page 2, line 31, leave out "leave" and insert "permission"
	Page 2, line 33, leave out subsection (4) and insert—
	"(4) Unless the Tribunal finds that IBB has made a mistake of law or fact, it must confirm the decision of IBB.
	(4A) If the Tribunal finds that IBB has made such a mistake it must—
	(a) direct IBB to remove the person from the list, or
	(b) remit the matter to IBB for a new decision."
	Page 2, line 37, leave out "(4)(b)" and insert "(4A)(b)—
	"(a) the Tribunal may set out any findings of fact which it has made (on which IBB must base its new decision); and
	(b) "
	Page 3, line 1, leave out "leave" and insert "permission"
	On Question, amendments agreed to.
	[Amendment No. 27 not moved.]

Baroness Sharp of Guildford: moved Amendment No. 28:
	Page 3, line 4, at end insert—
	"( ) If the IBB make a decision not to bar an individual, they shall complete a standard form which will set out reasons why the decision was taken not to bar him and this form shall be sent to the organisation which referred him."

Baroness Sharp of Guildford: My Lords, this brings us back to the issue of employers, about which the noble Baroness, Lady Buscombe, spoke at some length a short while ago. The purpose of this amendment is to ask for feedback for employers, or others referring individuals to the IBB, about why a decision not to bar an individual was taken. This would give referees an understanding of why that decision was taken and assist with future referrals.
	In Grand Committee my noble friend Lady Walmsley proposed an amendment that would have allowed employers to appeal against a decision not to include someone on the barred list. The Minister responded by saying that he was not convinced that it was appropriate for an employer to have the right of appeal against an IBB decision, because he was unclear what new evidence the employer could contribute once the IBB had received representations from all relevant parties—of whom the employer might be only one—and had reached a decision. We accept this and appreciate the Minister's assurances in Grand Committee.
	Nevertheless—and I argue for this amendment on behalf of the NSPCC—there is a feeling that there needs to be some feedback to the organisation that referred the case in the first instance, if a decision not to bar is taken. That would give it insight on why the decision was taken and whether it is making appropriate referrals to the IBB. Organisations are not looking for substantial and private information about the case itself. In the NSPCC's experience, under the current system it has referred individuals following its own investigation, only to find that the individual has not been barred and often it gets very little explanation or feedback. More feedback would be very helpful, so that organisations would know when it was appropriate to refer and when not to refer.
	The NSPCC has already recommended to the DfES setting up a group of employers and IBB representatives who can examine cases where employers or other bodies have referred people to the IBB who are not then barred. Its purpose would be to help employers understand what they need to do to improve their referrals, and to help the IBB learn more about the context in which these employers work, why they made the referrals and the issues they may need to consider in future. The NPSCC believes that such a forum should be established, as such organisations that have spent a great deal of time compiling information for List 99 or POCA, only to find that the individual referred has not been barred, find it frustrating when they are given no guidance or help on why the referral was not successful.
	If the Minister is not minded either to include a requirement of a specific, pro forma response identifying why an individual has not been barred or to set up a forum for employers as suggested by the NSPCC, an alternative might be for the IBB to carry out, after a short while, an internal review where an employer can ask it for a second opinion. Where an individual has been referred but not barred, the employer could go back to the IBB and say, "We feel there is good reason to bar this person. Could the IBB institute an internal review of the case, perhaps by a different group of officials, to make sure that the original decision was a good one?". I beg to move.

Baroness Buscombe: My Lords, I rise briefly to support the amendment. As the noble Baroness said, where an individual has been considered for the barred list but is not included on the list following an investigation, his reputation could in any event have been seriously damaged. Moreover, an individual faces being ostracised from the community following serious allegations of abuse. It therefore seems only fair that those who have not been barred should have a return from the investigation in the form of written proof of the reasons for their innocence.

Lord Adonis: My Lords, this amendment would place a duty on the IBB to inform referring organisations of the reasons for its decision not to bar an individual who was referred to it for consideration. We believe that it is absolutely necessary for employers to be informed of the barred status of an individual and we will use the power in Schedule 2(11) to ensure that this is a requirement of the IBB.
	We have given the issue a good deal of further consideration since the debate in Grand Committee to which the noble Baroness, Lady Sharp, referred. We do not consider that it would be appropriate that employers should be given the reasons for the IBB decision. There is a particular reason why we have taken this view. Our concern is that notifying employers of the IBB's reasons not to bar an individual would give employers a false sense of security that the person not barred is in fact cleared to work with children or vulnerable adults. Employer discretion and rigorous recruitment and selection procedures will always be a key element in ensuring that the wrong kinds of people do not get to work with society's most vulnerable citizens. We would not wish that any such false sense of security should be provided to employers.
	We appreciate, however, that the amendment has been inspired by concern that referring organisations and employers should know enough about how the scheme works and their role in it to be able to play their part effectively. That, of course, is essential to the success of the barring scheme as a whole. We will expect the IBB to work with employers and other referring bodies to fine-tune the referral system and to ensure that there is good awareness of how the scheme operates. We would expect the IBB to advise referring bodies on the types of information that should be referred, the mistakes that can delay consideration of a case and the kinds of information that should not be referred—all the issues mentioned by the noble Baroness in her opening remarks. The IBB would also provide feedback to referring bodies on patterns of referrals, thresholds for barring and the types of cases that will lead to a bar and those that will not, notwithstanding what I have said about providing specific reasons in individual cases
	The noble Baroness also suggested that there might be some form of employers' forum which the IBB could use to engage with employers. While we would not wish this to be specified in the legislation, that seems an eminently sensible suggestion and one which we would certainly bring to the attention of the IBB itself. So I hope the concerns that underpin the amendment have been met. However, for the reasons I have given, we do not wish to accept this precise amendment.

Baroness Howarth of Breckland: My Lords, before the Minister sits down—and I had not intended to intervene in this part of the debate—I find that argument an unusual non sequitur for the Minister. I wonder who has given him the advice. There seem to be two parts. All employers must have robust personnel and supervisory arrangements that protect their stakeholders from employees who might behave inappropriately. However, as part of that, it seems that transparency would demand that they know why someone has been barred. It is quite clear that that adds to, rather than detracts from, their responsibilities. Any responsible employer would see that not as a comfort but as help in dealing robustly with them. I am therefore rather disquieted by the advice that has been given and am sure that the noble Baroness might want to return to this at another stage. The reason I was not going to intervene was that I do not think that this is something we should see on the face of the Bill. It should come in regulation or guidance.

Baroness Sharp of Guildford: My Lords, I thank the Minister for his reply. We understand the problems of revealing confidential information when responding to employers. In that sense, I agree entirely with the noble Baroness, Lady Howarth. It would be quite helpful if guidance from the IBB made quite clear the sorts of information that it requires if people are making referrals to it. The issue of transparency is obviously raised here. It is a difficult issue that we need to think about and perhaps return to. The NSPCC specifically raised with us the issue of the sort of information that is required. We do not understand why, when we provide the wrong information, we sometimes think that we have satisfied the criteria although we do not seem to have done so. Clear guidance should be laid down for the IBB, and it should make clear to those employing people who fall into this category the sort of information that it needs when considering whether somebody should be barred. There should be clarity there.
	The Minister's response to the suggestion that there should be an employers' forum also was very positive. I urge him to take that forward and think about it more. With those assurances from him, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 3 [Regulated Activity]:

Baroness Royall of Blaisdon: moved Amendments Nos. 29 to 32:
	Page 42, line 31, after "3(1)" insert—
	"( ) the activity is carried out for or in connection with the purposes of the establishment,"
	Page 43, line 18, at end insert—
	"( ) In sub-paragraph (7)(c) the reference to an NHS body includes a reference to any person who provides, or is to provide, health care for the body (wherever the health care is or is to be provided)."
	Page 44, line 9, at end insert—
	"( ) In sub-paragraph (2) employment includes any form of work which is carried out under the supervision or control of another, whether or not the person carrying it out is paid for doing so."
	Page 44, line 21, leave out "that Act" and insert "the Care Standards Act 2000"
	On Question, amendments agreed to.

Baroness Royall of Blaisdon: moved Amendment No. 33:
	Page 46, line 10, at end insert—
	"(da) moderating a public interactive communication service which is likely to be used wholly or mainly by vulnerable adults;"

Baroness Royall of Blaisdon: My Lords, in moving Amendment No. 33, I shall speak also to Amendments Nos. 34, 35, 37, 39, 40, 45, 46, 47, 51, 53, 55, 56, 57 and 71 to 76. This is a group of minor and technical amendments on the coverage of vulnerable adults in the Bill and legislation that is the responsibility of the Department of Health.
	We have brought forward Amendments Nos. 33, 34 and 35 in recognition of the fact that at Second Reading my noble friend Lady Thornton pointed out that internet chat rooms for vulnerable adults are not covered by the Bill although they are covered in respect of children. This amendment corrects that anomaly. It will ensure that where chat rooms are targeted at vulnerable adults, as defined in Clause 45, and where someone is employed to moderate the content of that chat room for the purposes of adult protection—that is, identifying and preventing abuse—that post will come within the definition of regulated activity in relation to adults, and is covered by the scope of the bar.
	Amendment No. 37 seeks to ensure that all inspectors working for the Healthcare Commission and the Commission for Social Care Inspection will be included in the definition of regulated activity and, therefore, covered by the scope of the bar. That was always our intention; this amendment puts it beyond doubt.
	Amendment No. 39 is a transitional provision. Clause 15 is intended to provide that where a person is already employed by the NHS as his main job, he will be able to undertake temporary postings within the NHS to cover staffing gaps and shortages. This is one way in which the NHS seeks to minimise reliance on expensive outside agency staff. Often such temporary postings may well be for the duration of a shift to cover sickness absence or similar. A person in this situation may have been employed in the NHS for many years before the Bill comes into force, so will not be subject to monitoring. As a result, there needs to be protection against the commission of an offence in these circumstances because the appropriate monitoring arrangements will not be in place. This amendment provides that protection.
	In addition, where an NHS employee has been checked in relation to his main NHS employments, Amendments Nos. 45 and 46 ensure that this check remains valid for temporary postings that he undertakes while that main employment continues. This means that the NHS does not have to undertake a new monitoring check each time an NHS employee undertakes a temporary NHS posting which may last for just a few hours. I am sure that noble Lords will agree that the necessity to carry out such a check each time has the potential to undermine the swift and efficient deployment of NHS staff to where they are most needed.
	Amendment No. 53 merely corrects Clause 15(2), given that the provisions in it are being repealed.
	Amendments Nos. 40 and 47 extend the exemption in Clause 14, which exempts certain regulated activity providers from the obligation to make a monitoring check, to the requirement placed on individuals to be subject to monitoring and to the requirements placed on regulated activity providers to ensure that a person they engage is subject to monitoring. Where there is no obligation on a regulated activity provider to make a monitoring check in the first place, it makes no sense for the individual to commit an offence when he engages in regulated activity in these circumstances without being subject to monitoring. Neither does it make sense for the regulated activity provider to commit an offence if he engages a person who is not subject to monitoring. This is a necessary drafting amendment to give effect to the intention behind Clause 14, which is to exempt certain employers from the requirement to check, and the associated offences, but to ensure that these sectors were able to make such checks. I emphasise that regardless of whether there is a requirement to check, where someone is barred they will be committing an offence by undertaking regulated activity.
	An amendment was made in Committee to include those who have created an enduring power of attorney as well as a lasting power of attorney. Amendment No. 51 ensures that the exemption from the requirement to check applies to both equally. In effect, this corrects a drafting omission.
	Amendments Nos. 55 and 56 give the Secretary of State the power to make regulations doing two things: first, to amend the definition of controlled activity in relation to vulnerable adults by adding further types of activity that can qualify as a controlled activity in the circumstances set out in Clause 19(2); secondly, to add persons involved in those activities to those who must have regard to guidance relating to permitting people to engage in controlled activity issued under Clause 20.
	The current definition in the Bill covers only those working in health and social care, where we know the risks are greatest and where checks will be required. However, we want to retain the flexibility to amend the description of controlled activity, should service provision change in the years ahead. We have made the same provision in relation to regulated activity.
	Amendment No. 57 seeks to marry all the references to access to health records in the Bill so that there is true consistency. We prefer the more general term of health records rather than medical records, as this is the term used more widely in reference to information that health services hold about individuals; it has been used elsewhere in legislation, such as the Access to Health Records Act 1990.
	Amendments Nos. 71 to 76 are drafting changes made for the purposes of clarifying these provisions grammatically.
	I trust that these minor and technical amendments will be acceptable to noble Lords. I beg to move.

Baroness Buscombe: My Lords, I want to ask the Minister a question about the amendments relating to existing NHS staff who are undertaking temporary positions in the NHS in addition to their main employment in order to cover staffing gaps and shortages. Continuous regulation has the potential to seriously stifle organisations such as the NHS, and adding further bureaucracy to the field of recruitment, already suffering shortages of trained staff, is simply counterproductive. We therefore welcome these government amendments, and they will be of practical benefit. However, has the Minister given consideration to other areas of recruitment in this respect; for example, supply teachers or care staff in the private healthcare sector? I am wondering why this provision is limited to the NHS. Is it because the Department of Health drafted this part of the Bill? Is that why consideration has not also been given to, for example, supply teachers?

Baroness Royall of Blaisdon: My Lords, I understand that supply teachers are covered in other parts of the Bill. As for workers who are employed by agencies, for example, they will have to be checked and vetted if they are working with vulnerable people, caring for them or undertaking personal, social service-type tasks for them. The NHS is specifically referred to because it is specifically referred to in the Bill. We are tidying up the Bill to ensure that it is absolutely explicit that there will not be a further burden on the NHS at this stage and that checks will be made when necessary.

On Question, amendment agreed to.

Baroness Royall of Blaisdon: moved Amendments Nos. 34 to 37:
	Page 46, line 12, at end insert—
	"( ) For the purposes of sub-paragraph (1)(da) a person moderates a public electronic interactive communication service if, for the purpose of protecting vulnerable adults, he has any function relating to—
	(a) monitoring the content of matter which forms any part of the service,
	(b) removing matter from, or preventing the addition of matter to, the service, or
	(c) controlling access to, or use of, the service."
	Page 46, line 13, leave out "(a) to (e)" and insert "(a) to (d) or (e)"
	Page 46, line 20, after "person" insert—
	"( ) it is carried out for or in connection with the purposes of the establishment,"
	Page 46, line 29, leave out sub-paragraphs (5) and (6) and insert—
	" (5) The exercise of the functions of—
	(a) the Commission for Healthcare, Audit and Inspection;
	(b) the Commission for Social Care Inspection;
	(c) the National Assembly for Wales,
	so far as it relates to the inspection of an establishment, agency, person or body falling within sub-paragraph (6) is a regulated activity relating to vulnerable adults.
	(6) An establishment, agency or body falls within this sub-paragraph if it is—
	(a) an establishment in relation to which a requirement to register arises under section 11 of the Care Standards Act 2000,
	(b) an agency in relation to which such a requirement arises,
	(c) a person to whom Part 2 of that Act applies in pursuance of an order under section 42 of that Act, or
	(d) an NHS body within the meaning of section 148 of the Health and Social Care (Community Health and Standards) Act 2003,
	and it provides any form of care, treatment or therapy for vulnerable adults.
	(6A) In sub-paragraph (6)(d) the reference to an NHS body includes a reference to any person who provides, or is to provide, health care for the body (wherever the health care is or is to be provided)."
	On Question, amendments agreed to.
	Clause 6 [Regulated activity providers]:

Lord Harris of Haringey: moved Amendment No. 38:
	Page 3, line 30, leave out "or vulnerable adult"

Lord Harris of Haringey: My Lords, this amendment relates to Clause 6, the clause that defines regulated activity providers. As we discussed in Grand Committee and at Second Reading, regulated activity involves hands-on care and the training and supervision of a child or vulnerable adult. A regulated activity provider is someone who has responsibility for the management of that regulated activity. There are exemptions to that definition, set out in Clause 6(3) to (6), which are essentially about people making private arrangements, purchasing care for themselves, a family member or a friend. They would not be regarded as regulated activity providers in the context of this Bill and therefore, although they would have the power to make checks on people who are hired, would not be required to carry them out.
	My amendment would make it clear that there should be a greater duty of care on someone who is not personally affected by the decision they are making. In those circumstances the friend or family member who is assisting the vulnerable adult would need to be redefined as a regulated activity provider in order for checks against the barred list to be mandatory. I recognise that it is an offence for someone on the barred list to apply for this type of work, but the purchaser would not be obliged to make checks against the list. I believe that that has created a loophole in the Bill. The amendment seeks to make that loophole rather smaller.
	It is clear that the measure would place additional burdens on friends and family members—I am sure that noble Lords have seen the briefing from Carers UK on precisely that point—but such people are already under a duty to take reasonable steps to promote the welfare of the person who they are assisting. By clarifying that checks against the barred list should be made in respect of potential staff carrying out regulated activity, the welfare of vulnerable adults is promoted. That is in accordance with the general provision of the Bill.
	I understand—I am grateful to my noble friend Lady Royall for the time that she has given to me and other noble Lords to discuss precisely this point—that the Government have listened carefully to stakeholders who are concerned that making checks mandatory for all direct payment users would be an unnecessary and offensive intrusion into private life. However, the amendment is not about the people who have the capacity to hire their own personal support and assistance—it certainly does not suggest that those individuals would become regulated activity providers— it is about those people who are doing it on their behalf because they do not have the capacity to do it themselves. As I have said, it is argued that there should be a greater duty of care where someone other than the person doing the hiring is affected by the decision which is taken.
	Clearly, I do not want to suggest that friends and family members are not already taking reasonable steps to promote the welfare of the people they are assisting. I understand that the measure might appear to create additional burdens for them, though it is my belief that the additional burden would be a very small one. As I shall point out in a moment, I believe that it would make their job easier in terms of what they have to do.
	Obviously, we should trust those who are closest to vulnerable adults to make the right decisions on their behalf; I accept that. Certainly, it should not be the intention to criminalise family members or friends who are helping someone who lacks capacity to manage his or her affairs, but a barred person would be committing an offence that could lead to a prison sentence if she or he applied to work in a job involving regulated activity. It has been argued that that would be a sufficient deterrent. However, my concern—and I have discussed this with a number of people—is that if a barred person knows that the family and friends of a vulnerable adult are unlikely to take advantage of their opportunity to check against the barring list, that is precisely the family on which they will focus their activities. There is a lot of experience among professionals in the social care field that that is what happens. Those people will gravitate towards that work and those families.
	Therefore, I read with great interest the document produced by Carers UK in which it states that the measure would constitute an unreasonable requirement on friends and families of vulnerable adults. Carers UK gives examples which it says are proof that checks should not be needed. It states:
	"Jim down the road who has known the family for years and gets on extremely well with the son, regularly takes him out to do a range of activities. He's not paid, but a volunteer. If some of the amendments were successful, the parents would be committing a criminal offence if they did not check that he was not barred from working with vulnerable adults first".
	The document continues:
	"Judith has a direct payment which she helps her husband manage as he's in the first stages of Alzheimer's Disease. She met Maria through her local Alzheimer's Society support group. Maria's Mum, who had Alzheimer's Disease, died a couple of years ago and now Maria has started to help other families . . . Judith would be committing a criminal offence if she did not check whether Maria was allowed to work with vulnerable adults".
	My point is that it is precisely under those circumstances where a family member or a close friend is arranging care for their loved one that they may find it most difficult to reject help from somebody whom they know and with whom they have been working. Although they would have power to make that check, many individuals would find it difficult to go to someone who has already been supportive and helpful and say to them, "Please sign this piece of paper so that I can check whether you are on the barring list". It would be much easier to go to someone and say, "As you know, the law requires me to make this check", rather than, "The law says that I may if I wish to. Therefore I don't trust you". Under those circumstances, we would be strengthening the hand of carers of vulnerable adults. We are giving them an easier option in exercising their judgment and providing the best care for the people concerned.
	I was therefore very relieved that another organisation, Help the Aged, explicitly addressed this question and said that it agrees with the line that I believe is important. It states that,
	"this would be particularly helpful in supporting the most vulnerable Direct Payments users—those who need assistance in arranging their affairs and, in particular, those whose Direct Payments are operated through a trustee account".
	I accept that there may well be points about whether my amendment to remove the three words is technically perfect, but I assume that that is something that can be resolved by Third Reading. My amendment is not designed to criminalise carers. It is designed to give carers an easy way of saying to someone who has made friends with the family and who appears to be generally supportive: "The law requires us to make this check". That will empower carers rather than impose an undue burden on them. I beg to move.

Baroness Buscombe: My Lords, I hope that the Minister agrees that it would make sense if I spoke in this grouping to my Amendments Nos. 38A, 50A and 55A. In my seven years on Her Majesty's Opposition Front Bench, I cannot remember a more difficult issue in relation to deciding what is right. It is such a difficult balance to strike. The noble Lord, Lord Harris of Haringey, spoke eloquently and with a good deal of sense with regard to his amendment. He stated, most importantly, that friends are often the most difficult people to reject when they offer help to someone they know. That rings true and everyone appreciates that the Government are no doubt finding it difficult to strike the right balance too.
	My amendments are the result of several meetings that noble Lords have attended since Grand Committee. I was disappointed to have missed the meeting with the noble Baroness, Lady Royall of Blaisden, but I have been fully briefed on that discussion. This cluster of amendments is intended to demonstrate our commitment to ensuring the very best safeguarding standards for those who employ people at home.
	Amendment No. 38A is the vital amendment and is designed to achieve two major objectives. First, the amendment and the others that support it would ensure that the duty to check potential direct payment employees would be required only for those third parties who act on behalf of a vulnerable adult. That position is defined in Section 5 of the Mental Capacity Act. My amendment differs on that point from the amendment moved by the noble Lord, Lord Harris of Haringey, which, as I understand it, would mean that all people who employ under direct payment schemes, including those who employ for their own care, would be under a duty to make checks. I agree with the noble Lord that it is much easier blame the law and say, "I'm terribly sorry, but the law requires me to make this check", rather than being put in the difficult position of proposing to a friend or a member of the family the need to carry out that check. However, I am concerned that that is perhaps pushing the balance too far. Of course, it is so difficult to police this issue.
	Secondly, the amendment links up the duty of care in the Mental Capacity Act with the new provisions for care—the barred lists—that the Bill will introduce. It was my concern that an individual providing third-party care would find himself in breach of the Mental Capacity Act by not carrying out a check. It is reasonable to suggest that if a vulnerable adult were to suffer abuse because the person responsible for them as a third party did not make a check, that person could be said to have breached their duty of care. I understand that there was a long discussion on this at the meeting with the noble Baroness, Lady Royall, and cross-table support for the reasoning that a mandatory check would be easier to implement.
	I am aware of the position of Carers UK on the suggestion that direct payment employees would be subject to a check, but this amendment does not affect people who provide care entirely for themselves. Rather, it seeks to protect those who can no longer care for themselves. Making a check itself does not reflect in any way on the character of the person subject to checking. That is an important point. But I understand that it may be difficult to say to a potential employee, especially a friend, that you would like to make a check on them to care for your mother or grandmother. Surely it is far easier to say, "I'm sorry, the check is mandatory", and to have the reassurance that that person is a safe bet as a matter of course. I look forward to the Minister's reply as I know that she has been working on the issue with her officials and had promised to come back to me on that point.

Baroness Howarth of Breckland: My Lords, the noble Lord, Lord Harris, made the case extremely clearly and I am grateful to the noble Baroness, Lady Royall, for the meeting that was held. I believe, and I am sure that the noble Lord, Lord Harris, would want it clarified, that we were trying to separate out what we meant by a "vulnerable adult". An adult who is able to arrange their own direct payments may have a disability but that does not render them a "vulnerable adult". Many disabled people are very able. They are disabled only in a societal sense because of their surroundings, but they manage their own affairs. In those circumstances we all clearly felt that they should be able to get on with it.
	The real difficulty is when people are vulnerable and others are acting on their behalf. Like the noble Lord, Lord Harris, I believe that someone must give real permission. It is a benefit to people. I am interested in the Carers UK argument. Having worked in the field for many years, I know that it is the neighbour you think you knew very well who ends up being the abuser; it is not the monster stranger depicted in the newspapers.
	When the Church of England first introduced a regulation that all Sunday school teachers should be checked, which was a little before the regulation was enforced, it developed a whole series of diocesan child protection organisers. There was then a slight outcry in some of the churches. How could these good people need to be checked? The Church is now deeply relieved to do this statutorily because we are talking about volunteers working directly with children. I am sure that if the measure were introduced it would be seen as a benefit, it would take away pressure from families, and we would protect some truly vulnerable adults.

Baroness Walmsley: My Lords, I have added my name to the group of amendments in the name of the noble Baroness, Lady Buscombe. As I understand that the amendment moved by the noble Lord, Lord Harris of Haringey, refers only to agents of vulnerable people who are in receipt of direct payment, I also support his amendment. It is the agents who need to have the obligation to do the checks. They are the people who I want to reach whichever amendment we pass. I do not mind which one it is. Perhaps the noble Lord, Lord Harris of Haringey, would like the opportunity to clarify that point.

Lord Harris of Haringey: My Lords, I am grateful to the noble Baroness for that invitation. As the House knows—I have referred to it at least once today—I pride myself on not being a lawyer. However, my understanding of the amendment and certainly its intention is that it concerns the agents of people who are vulnerable adults rather than vulnerable adults who, in other circumstances, are perfectly able to arrange matters themselves. I intend this amendment to cover people who are acting on their behalf.

Baroness Walmsley: My Lords, I am grateful to the noble Lord for that clarification. On that basis, I am right behind him. If he chose to divide the House, I would support him. He is absolutely right: it would empower carers to be able to say, "I am obliged to do this check". I very much agree with the noble Baroness, Lady Howarth of Breckland, that "Jim down the road" is exactly the type of person who may have made himself very friendly and amiable to a family but with malign intent. Such people are very friendly and one would not believe that they had any intention of doing harm. That is how they manage to reach their victims. I believe that the obligation for agents to undertake the check would greatly improve the Bill.
	Yesterday, I was very confused by receiving two conflicting pieces of advice on how to vote on the amendment tabled by the noble Lord, Lord Harris, from two very reputable organisations. I think that the advice from Help the Aged makes the points with which I feel most in tune. It has got it right. Carers UK's concerns are absolutely understandable, but I believe they are misplaced—I hope they are. If we were to put something in the Bill to this effect—the intentions expressed by the noble Baroness, Lady Buscombe, and the noble Lord, Lord Harris—then I hope that Carers UK and the people it represents would not feel either insulted or too burdened but empowered to do the jobs they have so generously taken on.

Baroness Royall of Blaisdon: My Lords, as the Bill stands, Clause 6(5) provides an exemption from the definition of regulated activity provider in relation to family members or friends who make arrangements for the provision of regulated activity for individuals within their care. Amendment No. 38 would remove that exemption in relation to family members and friends; for example, to ensure that checks are made where care is arranged by a third party. I do not believe that this is a loophole, as mentioned by my noble friend Lord Harris. To accept this amendment would mean interfering in private arrangements, which is something that we wish to avoid. Indeed, one of the underlying principles of the Bill is that the Government should not impose requirements on individuals' private lives and on family members or friends of vulnerable adults.
	Noble Lords will recall that the noble Lord, Lord Laming, tabled a similar amendment in Committee and we debated the issue at length. I understand that this is an area of concern for many and I welcome the opportunity to give the House further assurances. First, it may help if I provide a couple of further examples that set out why we believe that the exemption is so vital and why we believe that those acting in connection with the provision of care or treatment to their friends and family members who lack capacity should not be included in the definition of regulated activity provider.
	The daughter of a lady with dementia may wish to employ a neighbour for a few hours a week to help to take care of her mother. The neighbour may be paid or unpaid, but regardless, that is a private arrangement and we would not wish to interfere with that. Alternatively, a young disabled man may wish to enlist his friend's help in managing his direct payment and that friend may employ another friend or neighbour as a PA to help out with certain tasks. For example, the PA may take the young disabled man swimming or to a cafe for lunch. Again, it is not our intention to interfere in that kind of arrangement.
	As the Bill stands, in both those cases it is not our intention that either the daughter or the friend would be regulated activity providers and, therefore, they would not be required to make barred status checks on the individuals whom they employ. However, they would be able to make checks if they wished to do so in both cases. We must work on the basis that the daughter and the friend would act in the best interests of their family or friend and we must, therefore, give them the freedom to decide whether to engage with the scheme. To do otherwise would be to intervene in the type of family or friendly arrangement that was never intended to have legal consequences. I do understand that my noble friend does not seek to impose legal consequences but, as it stands, that would be the consequence.
	A key principle of the scheme is that we do not intrude into private and family life. As a result, we do not require parents to check everyone who cares for their children and we do not propose to do the same for the family members or friends of adults. We understand that adults who lack capacity should not be treated in the same way as children, but the Bill as drafted reflects the realities of family life. If all those who assist their loved ones or friends in managing their day-to-day lives in this way were placed in the mandatory sector, it would mean that anyone who failed to engage with the scheme would be committing a criminal offence. We do not wish to risk criminalising those caring for loved ones. To accept these amendments would do exactly that.
	As my noble friend Lord Harris and other noble Lords mentioned, Carers UK, an organisation that we all respect enormously, has expressed concern about any amendments that would result in placing legal requirements on family members and friends. It argues strongly against creating additional burdens on the 5.2 million carers who provide unpaid care. It is also concerned that,
	"additional burdens would act against Government policy which is seeking to open up choice to disabled people and their families about which services to use",
	allowing them to opt not to use large-scale providers but to,
	"engage the help and services of people known to them, or through advertisement".
	The Government recognise the important contribution carers make and want to support them. I understand the points raised about the vulnerability of this specific group of people. It could be envisaged that family members or friends might on occasion take advantage of their vulnerability. I also understand the point made about targeting of those specific individuals. However, I would suggest that this is an area where we have to get the communication strategy right, and it is not just a question of government but local agencies and organisations such as carers' organisations so that we can build a community of support where the checks are the accepted norm.
	The issue of trust raised by noble Lords is key, because we should not seek to destroy the trust that exists between family members and friends. Amendment No. 38A in the name of the noble Baroness, Lady Buscombe, would have a similar outcome, but it would include within the definition of regulated activity provider under Clause 6 all those who act in connection with the provision of care or treatment as set out in Section 5 of the Mental Capacity Act 2005 for family members or friends who lack capacity. This is a huge number of people and the arguments I have made in relation to Amendment No. 38 would apply to Amendment No. 38A.
	Amendment No. 50A tabled by the noble Baroness, Lady Buscombe, seeks to remove paragraph (h) of Clause 14(1). This provision exempts those individuals in receipt of a direct payment and those individuals requiring assistance in the conduct of their affairs—individuals who have a lasting or enduring power of attorney, a deputy appointed by the Court of Protection to make decisions on their behalf, or an appointee taking care of their benefit or pension payments. As your Lordships will recall, we debated direct payments at some length in Committee. I understand that this is an area of concern for many and that opinion remains divided in terms of how best to protect individuals in receipt of direct payments. However, I must reiterate some of the arguments I raised in Committee. Direct payments are about giving individuals more choice and control over their lives—empowering them—and any move to place direct payments recipients in the mandatory sector would be met with strong resistance by the recipients themselves. The wishes of those benefiting from direct payments must be paramount when considering the requirements of the Bill.
	I would also point out that our approach has received widespread support from those organisations representing users of direct payments. For example, Menghi Mulchandani, co-chair of the National Centre for Independent Living, has stated that compelling people to check potential users against a barred list would deny them the opportunity to take the risks that others are free to take.
	However, we understand the concerns raised in relation to this group of people and we accept that more could be done, perhaps via the direct payment support services that exist in most local authorities, to support individuals in accessing the scheme. Therefore, we intend to place a duty on all local authorities to inform direct payments recipients about their right to engage with the vetting and barring scheme. We are currently looking at how that might be achieved, and I look forward to sharing the outcome of that exercise with noble Lords at Third Reading. That approach has been endorsed by a number of stakeholders, including Action on Elder Abuse.
	I now turn to the exemption for those requiring assistance in the conduct of their affairs. People defined under this subsection are potentially at an increased risk of abuse and therefore it is right that those individuals providing those types of support can be eligible for the central vetting process. However, in many cases, individuals providing that assistance to a vulnerable adult will be family members or trusted friends and, as such, it would not be appropriate, and might be perceived as being offensive, to impose mandatory checking requirements on them. We do not wish to interfere unnecessarily with that type of arrangement. We believe that the decision whether to vet staff should remain with the individual. They will decide whether or not to make a check and we will ensure that they are supported in that decision.
	None the less, it will be possible for checks to be made. In addition, the public guardian will be able to run checks where any concerns are raised or where the Court of Protection or the public guardian thinks that such checks are necessary. That is why we want to retain the exemption in this sector.
	I turn to Amendment No. 55A, tabled by the noble Baroness, Lady Buscombe. We intend that controlled activity will cover those working in health and social care with vulnerable adults. That will include those undertaking controlled activity in relation to direct payment recipients. However, we are not confident that the Bill as drafted does so, so we are grateful to the noble Baroness for drawing that to our attention. I will come back to noble Lords later with a suitable amendment. On that basis, I ask the noble Baroness to withdraw her specific amendment.
	Many arguments have been made this afternoon about vulnerable adults. We have heard the concerns expressed by organisations such as Carers UK and others which take a contrary view. The Government believe that the 5.2 million carers in this country provide an invaluable service to people who need that care and we must listen to carers' associations. It is right to emphasise at this point that the Bill takes us so much further than the present position, where vulnerable people are not covered in any way by a barring and vetting scheme. Although I accept that the Bill does not go as far as many noble Lords would wish, it is a huge step forward and I therefore ask noble Lords to accept our reassurance that we intend to create an additional further safeguard in relation to direct payments. We intend that local authorities should be under a duty to inform direct payment recipients of their right to make checks. We are currently considering how that may be done.
	I ask noble Lords to reconsider Amendments Nos. 38 and 38A and not to press them.

Lord Harris of Haringey: My Lords, I am grateful to my noble friend for that reply. I must say that I am disappointed with it, especially given the very helpful discussions that we had earlier. Having said that, her proposal that there should be a legal obligation on local authorities to provide advice about the right to make those checks on recipients of direct payments is welcome and sensible.
	My concern, however, is not about recipients of direct payments who are able to act on their own behalf. It is entirely right that they should be given all the support and advice that my noble friend offers in her amendment. My concern lies with those people who act on their behalf. People who act on their behalf have a higher duty of care, in my view, than those who are making the judgment for themselves. We all make judgments about how much personal risk we are prepared to take. Quite properly, we are under all sorts of constraints if we are making those judgments on behalf of other people, even other members of our family. That is how the law works in other contexts. Where people are making arrangements on behalf of those who do not have capacity, whose vulnerability means that they are unable to make those decisions, it is important that the statutory obligation to take steps to check people is contained in the Bill.
	I am very mindful of the concern expressed by Carers UK. I must say that I think that Carers UK is wrong. It is saying that the mere fact of a requirement is imposing an onerous burden on the individuals concerned. As I have argued—and I have the impression that most of your Lordships who have spoken agree—it is often easier if you have an obligation to act to say to people who appear to be—or are—friends, "This is something that we must do". Even if you have the right and have been advised by your local authority that you have the right to make those checks, it is very difficult to say to someone, "I have the option but, in your case, I have decided to exercise it". That is very difficult for individuals to do. So I think that Carers UK has got that wrong.
	Before my noble friends who are Whips get into a state of hysteria, thinking that I am about to divide the House on this matter, I make clear that I suspect that my precise wording does not quite meet the requirements that I have set out. I hope that the Government will think very carefully about what has been said in this short discussion today and will come back in two weeks' time on Third Reading with some more positive proposals that meet the needs.
	The Government have three choices. First, they can do something that reduces the criminality on individuals who fail to make the checks. Secondly, they could do something to restrict the number of people who are covered by the provision, so that it really affects those whose capacity is very limited. Perhaps they could do a combination of those two. Thirdly, they could try to persist with the line that my noble friend has followed today.
	However, I rather suspect that if they do the latter, an amendment will appear on the Marshalled List that may have support from many sections of this House. It will be designed to try to remove the embarrassment that will in practice be felt by friends and family who are acting in the best interests of the person whom they love, who will find it very difficult to press someone who may have inveigled their way into their families or friendship. They will find it difficult to say, "Despite the fact that we are not obliged to, we are going to make this check on you". That would make it a lot easier for all those individuals, so I hope that my noble friend will come back at Third Reading with a proposal that either delimits the number of people to whom the provision applies or avoids the situation where people feel unduly criminalised.
	On the basis that I am sure that my noble friend will do just that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 38A not moved.]
	Clause 8 [Person not engage in regulated activity unless subject to monitoring]:

Baroness Royall of Blaisdon: moved Amendments Nos. 39 and 40:
	Page 4, line 38, at end insert—
	"( ) Where subsection (5) applies to a person who is engaged in regulated activity which is relevant NHS employment for the purposes of section 15(1)(d), he does not commit an offence under subsection (1) if he also engages in any other such regulated activity as mentioned in section 15."
	Page 5, line 4, at end insert—
	"( ) A person does not commit an offence under subsection (1) if—
	(a) the regulated activity is regulated activity relating to vulnerable adults, and
	(b) the regulated activity provider falls within section 14."
	On Question, amendments agreed to.

Baroness Walmsley: moved Amendment No. 41:
	Page 5, line 11, at end insert—
	"( ) It is a defence for a person charged with an offence under subsection (1) or (2) to prove that he did not know, or could not reasonably be expected to know, that he should have been subject to monitoring."

Baroness Walmsley: My Lords, in moving Amendment No. 41, I shall speak also to Amendments Nos. 42 to 44, 48 and 49. The whole group is designed to do what the noble Lord, Lord Harris of Haringey, has just suggested as an alternative; namely, to reduce the criminality in the Bill.
	Amendment No. 41 would introduce a defence for a person who is engaging in regulated activity without being subject to monitoring and who is charged with an offence. I presume that the punitive framework in the Bill is intended to ensure that those engaged in the vetting processes carry out their duties extremely rigorously. However, the wide range of regulated activities in Schedule 3 means that many thousands of people who are not directly involved in teaching or caring will be subject to vetting. Of course I agree that every attempt should be made to ensure that people do not engage in regulated activity without being vetted, but the best way of achieving this is to ensure that IBB procedures and processes are clear and definite, not by criminalising those who make mistakes.
	Clause 8 makes it an offence to engage in any regulated activity without being subject to monitoring. The only defences to this are if the individual got permission to engage in the activity before the Bill came into force or was involved in a regulated activity "on an occasional basis". This means that a person who, for example, gets work involving child therapy or who comes into frequent contact with children in relevant childcare premises, or who has contact with vulnerable adults in a care home, will commit an offence if they are not subject to monitoring. It is of particular concern that such a strict liability offence can be committed as a consequence of involvement in an activity which is defined by as unspecific a term as "frequent".
	At earlier stages of our debates, "five times" was given as a definition of "on an occasional basis". I really do think there is a loophole in the Bill if a serious sex offender would not offend if he engaged in regulated activity just once, twice or maybe three times a year; it takes only once to molest a child. Unless we close some of the loopholes, this Bill could be seen as retrograde. However, I digress.
	The defence in the amendment is quite limited. The onus is on the person charged to prove that they did not know, or could not have known, that they should have been subject to monitoring. I accept that this would be quite difficult because it involves proving a negative. It is similar to the defence introduced in Clause 7. However, it differs from that defence in that it offers an alternative; a person can prove that they did not know or could not reasonably have been expected to know. The reason for this is that, when proving a negative, it is extremely difficult to establish that you could not reasonably be expected to know. It will be especially difficult to prove that he did not know whether the person has signed for a letter telling him that he is barred, as we discussed earlier in our debate on Amendment No. 10A, which the Government accepted. But things go wrong, and people need proper opportunities to prove their innocence. My theory is that if it can go wrong, it will go wrong. That was proved to us last weekend. Those of us who read the newspapers will have seen that the CRB branded as criminals nearly 1,500 people who were not criminals; it was a case of mistaken identity. We must ensure that the defences against the rather draconian criminal offences introduced in the Bill are robust and that people have an appropriate opportunity to prove their innocence.
	Amendments Nos. 42 to 44 would restrict the offence of the use of a person not subject to monitoring in Clause 10 to situations where a person knows that someone is not subject to monitoring but still permits them to engage in regulated activity. The definition "reason to believe" is far too subjective. What is good reason in one situation is not in another. I believe that it is far too draconian to be left in the Bill, especially in a field where the turnover of staff is high, as it is in some care homes. Someone should know that the person should be subject to monitoring, but is not, before that person commits an offence. The amendments would restrict the criminalisation to situations where a person actually knew that someone was not subject to monitoring but still allowed them to engage in regulated activity.
	Amendments Nos. 48 and 49 stem from exactly the same concerns. In this case, we decided to table amendments to Clauses 11 and 12, adding the word "negligently" to ensure that only negligent cases are included in the offences in these clauses. The word "negligence" is well understood in legal circles, and people should be penalised only in these cases and not simply if they make a mistake, or if they are badly trained or badly supervised, which is not their fault.
	I attach considerable importance to the amendments, because I believe that they redress the balance of fairness in the Bill. Although I would not in any way want to reduce the rigour of the measures to protect children and vulnerable adults, we should always bear in mind the human rights of those who might be incorrectly penalised and who might inadvertently commit a criminal offence under the Bill. I beg to move.

Lord Adonis: My Lords, the amendments seek to ensure that individuals are not criminalised as a result of lack of knowledge or understanding of the requirements on them, or as a result of an oversight.
	Amendment No. 41 is intended to ensure that an offence is not committed by an individual who engages in regulated activity without being subject to monitoring where he did not know or could not reasonably be expected to know that he should be subject to monitoring. We entirely understand the noble Baroness's concern about criminalising individuals who do not know or understand the requirements on them. We certainly do not want to criminalise individuals unfairly; indeed, we have given a good deal of consideration to this matter. But I reiterate the commitments I gave to the noble Baroness in a letter following Committee, in which I said that we intend to take every reasonable step to ensure that there is no reason why individuals would be unaware that they were required to be subject to monitoring. We will expect the IBB to ensure that the scheme in place is well understood, and guidance issued before the commencement of the Act will provide further details about what type of activity will be covered by "regulated activity", and about the requirements on individuals to be subject to monitoring and not barred before engaging in this activity.
	The IBB and the CRB will put time and resources into an ongoing, widespread communication campaign for employers and employees, including the provision of seminars and training. I take to heart here the remarks made by the noble Baroness, Lady Sharp, on how we can engage more formally with employers to ensure that they are aware of their duties. We will continue to talk to the wide range of stakeholders in the Bill, as we have already done, and we will consult them where necessary. We will also communicate to individuals through websites and other media about their responsibilities under the new scheme. I should stress that we have already significantly extended the requirements for CRB checks as a result of the announcements made by the Secretary of State for Education and Skills in January.
	On 12 May, new regulations came into force that make it mandatory to obtain enhanced CRB disclosures for all new appointments to the school workforce and those who have been out of the workforce for more than three months. These regulations have already come into force, and we are providing substantial information about them on the TeacherNet website and other means of communication with schools.
	To take up another point discussed in Committee, we will also provide a facility to advise employers and individuals on interpretation of the Bill's terms and requirements. We envisage that this facility will be provided by the CRB with the support of my department, the Department of Health and the IBB itself. The CRB currently gives guidance on the likely extent to which a particular position is eligible for standard and/or enhanced disclosures. However, as terms are open to interpretation, the status of the CRB's advice is—and will be—only guidance. It will have no bearing on how the courts interpret criminal offences. So, we will work hard to minimise the possibility of employers or employees not understanding the requirements imposed upon them.
	Furthermore, the requirement to be subject to monitoring will, in the main, only apply to those individuals engaging in regulated activity with the permission of a regulated activity provider. These providers will be under a duty to check, and will therefore reinforce the message to individuals that they must be subject to monitoring.
	I hope that the noble Baroness, Lady Walmsley, will be reassured that we are effectively minimising any likelihood that an individual could engage in regulated activity without understanding the requirement to be subject to monitoring. However, we are acutely concerned about giving a defence in statute of the kind set out by the noble Baroness. The possible effect of the amendment would be to undermine the purpose of the scheme itself, because it could lead to employers and employees giving excuses and prevarication that prevent its effective enforcement. Providing the proposed defence for individuals will create a barrier to enforcing the scheme. It should be accepted that it is likely that the types of individuals who have a criminal record or past conduct that would lead to barring will, by the very nature of the offences, try to avoid applying to be subject to monitoring. Amendment No. 41 may provide an excuse for those individuals to avoid criminal sanctions. We are very anxious not to open up that loophole through the Bill.
	Amendments Nos. 48 and 49 are similar in their intention to prevent individuals from committing an offence through a lack of understanding of requirements placed upon them. The first amendment proposes that,
	"A regulated activity provider commits an offence",
	of permitting an individual to engage in such activity,
	"without making an appropriate check",
	only where he does so "negligently". The second proposes that,
	"The appropriate officer commits an offence",
	of failing "to obtain relevant information" relating to a person,
	"who is appointed to the governing body of an educational establishment",
	only where he does so "negligently". We take the effect of these amendments to be that a person would only commit the offences in question if his actions—that is, his granting of permission or failure to make an appropriate check—were not those of a reasonable person in the circumstances. I expect that the noble Baroness intends here to prevent a small employer who does not understand that they are under a duty to check committing an offence for failing to do so.
	I hope that the commitments I have made regarding communication with employers and individuals will reassure the noble Baroness that we will be seeking to reduce the chances of an employer committing an offence through ignorance of the requirements placed upon them. As with the proposed Amendment No. 41, these amendments would create a new loophole and endanger the scheme itself. These amendments could well lead to employers giving excuses and prevarication that prevent effective enforcement of the scheme. We do not wish to create a defence for employers that could undermine the success of the scheme.
	Amendments Nos. 42 to 44 are intended to restrict the circumstances in which an employer or personnel supplier is liable for an offence by employing an individual who is not subject to monitoring in situations where they know that the individual is not thus subject. The amendments seek to ensure that they will not commit an offence if they only have "reason to believe" that the person is not subject to monitoring.
	I impress on the House that the inclusion of "has reason to believe" is necessary for the effective functioning of the scheme. Where an employer does an online check which indicates that the individual is subject to monitoring but—perhaps because he is barred, or withdraws from the monitoring process—the individual later ceases to be subject, the intention is that the employer should be notified of that by the Secretary of State. If for some reason the employer is not, then they may receive information from another source such as the police or a regulatory body, and will thus not know that the person is not subject to monitoring but will "have reason to believe" that he is not. In these circumstances, it is important that the employer does not employ the individual until they know that the individual is subject to monitoring.
	For the scheme to succeed, it is important that individuals who are working closely with children and vulnerable adults are subject to monitoring. That will help to ensure that where evidence indicates that an individual presents a risk, to children or to vulnerable adults, they will be prevented at the earliest opportunity from working in regulated activity. Therefore, it is important that individuals engaging in regulated activity are subject to monitoring. The offences created by this clause, with a fine of up to £5,000 for breaches, will be a necessary disincentive for individuals to engage in regulated activity without being subject to monitoring, when working for an employer who is under a duty to check that they are.
	These amendments are unnecessary, while having the potential to reduce the necessary bite of the offence created under this clause. We are worried that they might open up loopholes for employers and individuals to engage in their duties to be subject to monitoring under the scheme. We hope that the noble Baroness will not press them.

Baroness Walmsley: My Lords, I thank the Minister for his reply. Our intention is certainly not to create loopholes in the Bill, but at the same time it is only right that individuals and, especially, employers have the appropriate defences against the criminal offences that they might be charged with under the Bill—when we have people doing their routine work who, as I said earlier, may not have been sufficiently well trained or supervised to know what they should be doing in terms of checks.
	I am disappointed to hear the Minister reject the insertion of the word "negligently", because if someone makes a slip through no fault of their own—through lack of training or supervision—and are doing the job to the best of their knowledge and training, then the word "negligently" will not catch them. They will only be committing the offence if they are negligent, a word that is well understood.
	I may return to this matter at Third Reading, but I need a little more time to think about it. I am strongly tempted to ask the opinion of the House on at least one such amendment, because the whole issue of the draconian nature of these offences—and the rather poor nature of the defences available to people—is so important.
	There are no noble Lords—including the Minister, myself and those on the Conservative and Cross Benches—who want to do anything to weaken the Bill. Despite that fact, we are still cognisant that people's rights should be protected, when doing their job to the best of their ability, by giving them an appropriate level of defence should they be charged with failing to dot all the "i"s and cross all the "t"s when somehow or other the information has not reached them. As I said earlier, if something can go wrong then it will, as has been proved over the weekend. For the moment, I shall not seek the opinion of the House, but I may well return to this matter at Third Reading after further thought and discussion with noble Lords. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 10 [Use of person not subject to monitoring for regulated activity]:
	[Amendments Nos. 42 to 44 not moved.]

Baroness Royall of Blaisdon: moved Amendments Nos. 45 to 47:
	Page 6, line 15, at end insert—
	"(5A) A person does not commit an offence under subsection (1) if—
	(a) he falls within section 15,
	(b) the permission mentioned in subsection (1) commences at a time when B is engaged in relevant NHS employment mentioned in section 15(1)(b) in circumstances mentioned in subsection (5), and
	(c) for the duration of the permission mentioned in subsection (1) B continues to be engaged in that relevant NHS employment."
	Page 6, line 16, after "(5)" insert "or (5A)"
	Page 6, line 17, at end insert—
	"( ) A person does not commit an offence under subsection (1) or (2) if—
	(a) the regulated activity is regulated activity relating to vulnerable adults, and
	(b) the regulated activity provider falls within section 14."
	On Question, amendments agreed to.
	Clause 11 [Regulated activity provider: failure to check]:
	[Amendment No. 48 not moved.]
	Clause 12 [Educational establishments: check on members of governing body]:
	[Amendment No. 49 not moved.]
	Clause 14 [Exception to requirement to make monitoring check]:

Baroness Buscombe: moved Amendment No. 50:
	Page 8, line 37, leave out paragraphs (b) and (c).

Baroness Buscombe: My Lords, I shall also speak to Amendment No 52, which questions whether this clause should remain in the Bill. Noble Lords may recall our debate in Grand Committee on exemptions, in particular Clause 14(1)(b) and (c), on protecting vulnerable people in prison, mindful that my concerns were not so much with what one might describe as the hardened criminal, but with young adults and offenders who are detained in custody. In introducing this amendment I explained that the report of the Second Joint Chief Inspectors' review on arrangements to safeguard children contains a wealth of information on the subject, covering the needs of both children and young people in custody. The report states that children and young people who commit offences present particular challenges for safeguarding. I also referred to various alarming statistics that highlight the vulnerability of young offenders. In addition, I referred to situations whereby communication and contact between agencies charged with protecting these people break down. I said that I believed this Bill to be the perfect opportunity to address this frankly disturbing and important issue.
	Unfortunately, I was not happy with the Minister's reply. He responded that:
	"The exemption in relation to those services means that they will be afforded the flexibility to specify and undertake vetting requirements relevant and proportionate to their unique services".—[Official Report, 3/5/06; col. GC 255.]
	Why, for example, are young offenders' institutions so different from other residential institutions such as boarding schools or care homes? Of course the rules will be different, but the proximity between those in authority and their residents is quite similar, in which case I find it difficult to accept that we are talking about unique services.
	Moving on to the amendment to delete Clause 14, noble Lords will note that I have added my name to that of the noble Baroness, Lady Walmsley, to demonstrate the depth of my continuing concern about the list of exemptions. Since Grand Committee, I have had an opportunity to discuss this issue with the Minister, and our meeting was both useful and constructive. The noble Lord agreed that we ought to know exactly how the system of checking works within the Prison Service. Are there strict rules or guidelines? Do all those who may come into contact with offenders get checked? Let us remember that in Grand Committee I cited the Soham case as an example whereby proximity might not have been expected or presumed.
	I understand that the Minister and his team have been researching this issue, for which I am grateful, together with other issues relating to other exemptions listed in Clause 14, and therefore I look forward with interest and hope to his reply. I beg to move.

Baroness Walmsley: My Lords, Amendment No. 52 seeks to leave out Clause 14. I wish to highlight the extreme dissatisfaction among noble Lords with different elements of the list set out in the clause—some more, some less, but all give cause for concern. To exempt so many categories of people from being regulated under the procedures in this Bill is highly risky.
	I have reason to believe that one of the reasons why the Government are apparently not moving on this matter is the sheer workload facing the IBB and the large number of people who would be dragged into the system if we did not have these exemptions. If that is the case, can the Minister assure us that if these exemptions were taken out, the people who by that means would be brought into the system could be included in a staggered way? In other words, could a provision be brought back at Third Reading to include the people we are concerned about—those working in the prison and probation services, home tutors, alternative therapists, sports and leisure organisers and so forth—to provide that implementation in respect of those groups might be staggered over a period, perhaps up to two years? That response from the Government would be satisfactory and would set our minds at rest.
	If we want a rigorous and robust system, as we all do, the people listed in Clause 14 should certainly not be exempted. They should be included because many of them could have unsupervised access to vulnerable people in their own homes. In Grand Committee I used the example of those who place hands on bodies in the course of giving a massage. That is very intimate contact and it would be quite inappropriate to exempt such people from these measures. I hope that the Minister will be able to give us some comfort on this issue.

Baroness Howarth of Breckland: My Lords, I support the amendments. As a practitioner, I find this list totally extraordinary. My personal experience concerns situations where people take their clothes off. That gives an absolute invitation to harassment and abuse, particularly of young women with learning difficulties who use alternative therapies or in a number of sporting situations where abuse takes place. Many of the organisations concerned could cite examples throughout this list.
	I recognise that the Criminal Records Bureau is pretty overwhelmed. Recently I was told—I hope it is not true—that an organisation with fewer than 100 volunteers could not be checked despite the fact that those volunteers had face-to-face contact with children with a condition that makes them vulnerable. So I realise that there are some real difficulties in the way the system is working. But that is no reason for legislators to behave in a way that does not protect the groups for which this Bill is supposed to provide. Further, I agree with the noble Baroness, Lady Walmsley, that the introduction of these measures could be staggered by the use of regulations.
	If the list is left as it is, vulnerable adults will be left open to a whole range of abuse. I hope that the Minister can reassure us on that point.

Lord Harris of Haringey: My Lords, I, too, have substantial reservations about this list of exemptions because it encompasses precisely those areas where there is very real vulnerability. I personally am not a great fan of complementary and alternative therapies, though I believe many people are. What all these therapies are about, aside from the frequent requirement to lay hands on individuals as part of the treatment or to work with their minds, is that the person who has put their trust in such a therapist believes, first, in the therapy and, secondly, in the therapist. Not checking those individuals would leave an extraordinarily dangerous loophole.
	Subsection (1)(d) refers to,
	"an organisation which provides recreational, social, sporting or educational activities".
	When I was involved in local authority social services, some of the most difficult cases of individuals causing problems related to children and vulnerable adults arose in those areas. They are precisely the areas where checks of some sort are required.
	I understand the concern about the volume of work associated with this provision, and I appreciate some organisations' concern that suddenly they will be required to comply with this. I have to say that I am not at all convinced by the second argument. Many such organisations provide services, particularly those for children, for which checks are already required. This would merely extend the range. The noble Baroness, Lady Howarth, referred to the position of the Church and the checks now made on Sunday school teachers. Organisations are now familiar with these processes. I do not believe that this would be a shocking new development with which organisations would have difficulty.
	I understand, too, the difficulties associated with suddenly placing an enormous new requirement on a system that may well be overstretched by all the other things we have talked about during our debates. The way to resolve that is not to produce a list of exemptions, but to recognise the difficulty and ensure that implementation is phased over a period long enough to allow the IBB to get under way and establish robust systems—I am sure that they will not be robust immediately—and to allow organisations for which this will be wholly new and uncharted territory to understand what is required of them.
	Although under Clause 14(4) the Secretary of State can amend the list, my concern is that if we simply have a list of exemptions as is contained here, an amendment to the list will happen only once there has been some appalling tragedy or some appalling series of incidents. I would much rather that we approached this, not operating on the basis of this list of exemptions until something goes awfully wrong, but on the understanding that, although this is the direction we need to go in, we should perhaps take a little time to get there.
	There should, therefore, be a major change to this list of exemptions, and, when setting an implementation timetable by order after the Bill has been passed, the Government should look very carefully at what is a feasible timetable, both for organisations that have to get used to a new system—I suspect it will not be quite as many as people fear—and for the IBB to get its systems strong enough to cope with what I accept could be a substantial number of incidents.

Baroness Royall of Blaisdon: My Lords, Clause 14 lists those regulated activity providers exempted from the obligation of making a vetting and barring check under Clause 11. I know that this is a difficult issue and that opinion remains divided as to the merits of retaining optional checks for certain groups. Indeed, I take note of the extreme dissatisfaction expressed by some noble Lords.
	I would, however, reiterate the importance of flexibility in the new scheme. For many sectors exempted under Clause 14, the concept of central vetting will be entirely new. We want to give these sectors the opportunity to phase in checks as appropriate to their individual services, and to give them the freedom to decide internally which members of staff should be vetted. However, we are also clear that we want those sectors within the scope of the scheme from the start, so that checks can be made and people can be barred in these areas, right from the very beginning. We hope to build a culture where checks are made as a matter of good practice rather than through legal force. We will develop comprehensive guidance for those employers and providers operating under Clause 14 which promotes the benefits of the new scheme.
	It is also important to bear in mind proportionality issues in relation to this clause. Mandatory checks should be proportionate to the risks presented. We want people to be safe, but we do not wish to impose a blanket requirement that may result in services being withdrawn. As a starting point, we have made checks mandatory in health and social care settings where we know that incidence of abuse is greatest. It may interest noble Lords to note that findings from research undertaken by Action on Elder Abuse indicate that the highest number of abusers was found in institutions such as residential homes, nursing homes and hospitals.
	I now turn to paragraphs (b) and (c) of subsection (1), and the amendment tabled by the noble Baroness, Lady Buscombe. Again, this issue was discussed in Committee. The Prison Service and the National Probation Service are two unique businesses, providing a wide range of services and interventions to adult prisoners and offenders through a wide range of staff groups and providers. A blanket approach to vetting arrangements would not sit comfortably within either service's operating arrangements. Therefore these services require the flexibility to specify and undertake the vetting requirements that are relevant and proportionate to their unique business.
	Although in the optional sector, neither the Prison Service nor the National Probation Service will seek to disengage from the new vetting and barring scheme. It will be their policy to comply with the scheme in making checks. The vast majority of staff working in close contact with vulnerable adults in both the prison and probation services will be checked, as set out in the legislation. For example, in the Prison Service, staff who have close contact with vulnerable adults in a prison setting—for example, prison officers—will be checked, but staff providing support to prisoners in a group setting may not be checked.
	Another important area for consideration regarding the Prison Service is the position of volunteers. The Bill needs to strike a balance between protecting vulnerable people in prison and imposing increased regulation which could ultimately reduce the benefit received by prisoners from voluntary workers. However, I well understand that the noble Baroness, Lady Buscombe, is particularly concerned about the most vulnerable offenders, especially those in young offenders' institutions.
	Both the Prison Service and the National Probation Service already have in place robust procedures for vetting staff, which include criminal history checks, and these apply to all staff. I reassure noble Lords that these procedures will remain in place for all staff not required to go through the new central vetting scheme.
	I remind noble Lords that, as an additional safeguard, we have made provision under Clause 14 to remove exemptions, via delegated legislation, in relation to those groups listed. This will allow time for the scheme to bed down in both the mandatory and optional sectors, and enable us to extend mandatory vetting in response to particular service requirements. I again remind noble Lords that, where someone is barred, it will be an offence for them to undertake any work involving regulated activity in any sector, whether or not a check is made.
	I have listened carefully to noble Lords' concerns this afternoon. I would like to reassure them that, since we debated this issue in Committee, I have been working with my advisers and colleagues in other government departments to consider how best this clause can be reworked. I certainly accept the merit of their arguments today, but I am also clear of the need to retain some optional checks for some sectors of the workforce, and I hope that we can achieve a solution that is acceptable to all concerned.
	I am particularly grateful to the noble Baroness, Lady Walmsley, for her suggestion that there may be some phased implementation sector by sector, and indeed we could do this under the powers in Clause 47(5). We will explore this further. I am not yet at a point where I can share with noble Lords our thinking on this clause as a whole. There are more discussions to be had with a vast number of government departments.
	I hope that noble Lords will be reassured, however, that I have taken on board their comments today and those made in Committee, and I undertake to come back on this clause on Report. I very much hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Buscombe: My Lords, before the Minister sits down, could she explain why, for example, in Clause 14(1)(a), complementary or alternative therapy is exempted in particular? I do not understand why that has been plucked out. We hear from her that the incidents of abuse have been found on most occasions to be in the health and social care settings and that that is where abuse is greatest. But that is bound to be the case, because they are in a more public arena. The problem with complementary or alternative therapy is that it is a very private situation, so the opportunity to discover abuse is much narrower. I simply do not understand the logic of this list.

Baroness Royall of Blaisdon: My Lords, the reasoning behind the inclusion of complementary medicine in the list of opt-outs is that complementary and alternative therapy encompasses a vast array of services. Many people benefit from these services, and we do not wish to impose regulatory burdens that may not be proportionate with the services they offer. However, I have listened with great sympathy to the arguments made by the noble Baroness today and in Committee. This is a matter of discussion among government departments and I very much hope that we will be able to find a solution that is acceptable to her on Report.

Baroness Howarth of Breckland: My Lords, before the noble Baroness sits down, may I ask that she circulates the group's research on elder abuse? Could she tell me whether it covers those with disabilities and those with learning disabilities? Those are very vulnerable groups which may well not have been looked at in the research and I would like to look at the methodology.

Baroness Royall of Blaisdon: My Lords, I would be delighted to circulate the research. I cannot answer the noble Baroness's specific question now but I will do so in writing.

Baroness Buscombe: My Lords, I thank the noble Baroness for her response, and I appreciate that she and her department are doing all they can to try to resolve this problem. Yes, opinion is divided, but it seems to be divided in the sense that all noble Lords, other than the Government, feel strongly that there is a problem with this list of exemptions.
	I shall start with the issue of vulnerable offenders. I am pleased to learn from the noble Baroness that there are robust procedures, including criminal history checks, in place at young offender institutions. Those will continue to apply to all staff. This is an area where some comfort would be gained if the Government could reassure us that truly good systems are in place for those particularly vulnerable individuals. With regard to the grouping as a whole, I get the feeling that the noble Baroness, Lady Walmsley, has hit upon the worry that the system will probably not cope. We hear in the press at the moment—some of it, I hope, exaggerated—that the Criminal Records Bureau is not coping and is having great difficulty and that mistakes are occurring—mistakes that are deeply offensive to those concerned.
	I appreciate that it is difficult to strike a balance between trying to be robust and cover all areas as best we can to minimise harm and, at the same time, being practical. All I can say is that I urge the Minister to reconsider some aspects of this list. Yes, flexibility in the new scheme is important. It is also important to ensure that there is some way of phasing in the checks as appropriate. I am nervous of tilting the balance too far in the direction of reducing the freedom of the individual, and I am sure that that is of concern to the Government. At the same time, we are talking about the most vulnerable individuals. I know from my own experience of seeking complementary medicine that one enters into a very private and intimate environment. Even I have felt quite uncomfortable for no reason at all. We are touching upon a very delicate area.
	We are lucky to have the expertise of noble Lords who have experienced some of these difficult issues at first-hand, including the noble Baroness, Lady Howarth, and the noble Lord, Lord Harris of Haringey. I urge the Minister and her team to remain busy in the two weeks before Third Reading. It is not something one would want to divide upon, but I am certainly not yet content. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 50A not moved.]

Baroness Royall of Blaisdon: moved Amendment No. 51:
	Page 9, line 5, after "(10)(a)," insert "(b),"
	On Question, amendment agreed to.

Baroness Walmsley: had given notice of her intention to move Amendment No. 52:
	Leave out Clause 14.

Baroness Walmsley: My Lords, the amendment deals with a very serious matter to which we will most certainly return at Third Reading. I thank the Minister for all her efforts behind the scenes. However, I have to express my disappointment that she has not been able to get further with this in time for today's debate. Today we have talked about little loopholes in the Bill. Clause 14 is a great yawning chasm in the Bill, not a little loophole, and is a very serious matter. I hope that what I have just said provides the noble Baroness with the sort of whip she requires to speed up consultations behind the scenes and to do something about this. This House will not be content until she is successful in her efforts.

[Amendment No. 52 not moved.]
	Clause 15 [NHS employment]:

Baroness Royall of Blaisdon: moved Amendment No. 53:
	Page 9, line 28, leave out from "in" to end of line 32 and insert "which the employee engages in regulated activity."
	On Question, amendment agreed to.
	Clause 18 [Controlled activity relating to children]:

Baroness Royall of Blaisdon: moved Amendment No. 54:
	Page 10, line 35, after "person" insert—
	"( ) it is carried out for or in connection with the purposes of the institution,"
	On Question, amendment agreed to.
	Clause 19 [Controlled activity relating to vulnerable adults]:

Baroness Royall of Blaisdon: moved Amendment No. 55:
	Page 11, line 24, at end insert—
	"(f) such other activity as is prescribed."
	On Question, amendment agreed to.
	[Amendment No. 55A not moved.]

Baroness Royall of Blaisdon: moved Amendment No. 56:
	Page 11, line 27, leave out "medical" and insert "health"
	On Question, amendment agreed to.
	Clause 20 [Controlled activity: guidance]:

Baroness Royall of Blaisdon: moved Amendment No. 57:
	Page 12, line 46, at end insert—
	"( ) such other person as is prescribed carrying out an activity prescribed pursuant to section 19(4)(f)."
	On Question, amendment agreed to.
	Clause 23 [Information monitor]:

Baroness Royall of Blaisdon: moved Amendments Nos. 58 to 64:
	Page 14, line 27, leave out "information" and insert "independent"
	Page 14, line 28, leave out "information" and insert "independent"
	Page 14, line 35, leave out "information" and insert "independent"
	Page 14, line 38, leave out "information" and insert "independent"
	Page 15, line 10, leave out "information" and insert "independent"
	Page 15, line 13, leave out "information" and insert "independent"
	Page 15, line 20, leave out "information" and insert "independent"
	On Question, amendments agreed to.
	Clause 24 [Part 5 of the Police Act 1997: code of practice]:

Baroness Walmsley: moved Amendment No. 65:
	Page 15, line 36, at end insert—
	"(d) issue conditions to be complied with;
	(e) issue a fine to the person"

Baroness Walmsley: My Lords, Amendment No. 65 is the same as an amendment that I tabled in Grand Committee, since when I have received a response from the Minister. The amendment was to provide for alternative sanctions against organisations that misuse the list and their ability to use it. I am most grateful to the Minister for his letter of clarification, sent to me as promised. In it he was able to reassure me that an organisation will still be able to apply for an enhanced disclosure via an umbrella body, and that the only facility it will lose is its ability to countersign applications.
	Cancellation or suspension of registration—which I had said would not be helpful—will not affect an employer's ability to make an online check of barred status. Could the noble Lord, in responding, tell me whether doing that through an umbrella body would take longer? However, I agree with the Minister's comments in his letter that non-compliance with any provision in the code of practice requires a serious sanction. The probity of information provided to the CRB, and any suggestion that disclosure information is being misused to the detriment of job applications, are serious matters. The CRB should be able to expect rigorous attention to the correctness of information supplied to it. The offending organisation should be suspended or, ultimately, have its registration cancelled if it offends against the code of practice in that way. I put these matters on the record out of gratitude to the Minister and in order to clarify the issue. I had tabled this amendment before I received the Minister's letter.
	I will probe a little further on one issue. The Bill places a legal duty on a range of bodies to refer individuals who have harmed children, or placed them at risk of harm, to the IBB. This includes, in Clause 27, regulated activity providers; in Clause 28, personnel suppliers in relation to employment situations; and, in Clauses 31 and 33, local authorities, regulating bodies and so on in respect of situations that may go beyond employment and involve conduct or risk of harm in a wide range of settings. In the Minister's helpful letter of 24 April he highlights by way of example other types of referral based on prospective harm. On the second page of that letter he refers to a psychologist reporting a teacher who was not in employment to List 99, following concerns over reported sexual interest in children. The Minister gave the same example verbally in Grand Committee. This case raises an important issue; namely the capacity for medical professionals working outside a local authority and other bodies such as the NSPCC and other children's organisations to refer people to the IBB. It is a highly important issue as the IBB must be able to capture information on those who pose a risk to children or vulnerable adults or who come to the attention of practitioners in a range of ways and settings which may not be covered by the duty in the Bill to refer to the IBB. For example, although a GP as a regulated activity provider would be under a duty to report a member of his staff working in a regulated activity, position or setting who had harmed a child or posed a risk of harm, what about the capacity of the GP to report a patient whose conduct gave cause for concern?
	I would like the Minister's views on three specific questions. I shall be perfectly happy if he writes to me because I have not been able to show him the courtesy of giving him notice of these questions before today's debate. First, what is the exact legal basis for referrals by bodies and individuals who are not listed in the Bill as having a requirement to refer to the IBB? If the Minister has received any legal advice on this, I would welcome the opportunity to see it. Secondly, if there is not a clear legal basis for this, should the Government not ensure that it is clear on the face of the Bill and that not to do so would run the risk of referrals of this kind from organisations such as the NSPCC being out of order? Thirdly, do the Government accept that the capacity for IBB referrals from a range of other bodies that have a responsibility for children would be an important safeguard and would add to the protections of children that we seek in the Bill?
	I would most grateful if the Minister could respond to these matters now or in writing. It seems that the possibility for people to refer to the IBB is very wide—almost anyone could do it. Obviously we do not want just anybody to do it. We need to be clear about who has the knowledge and understanding to be able to do it sensibly. I need to know whether organisations that have such expertise but are outside the duty can so refer to the IBB. I beg to move.

Lord Adonis: My Lords, I will respond to the questions of the noble Baroness in writing so that I can give her a very precise answer to her question.
	It is of course open to any individuals—indeed, it is a part of their duty as citizens—including the organisations mentioned by the noble Baroness, to refer information that leads them to be concerned about the activities of individuals and their work with the groups covered by the Bill; that is, children and vulnerable adults. The normal course in the first instance would be to refer the matter to the police. The police have procedures, of course, which they follow when such information is referred to them, and the police themselves will make a judgment on whether to refer the information to the IBB. It would be open to individuals to refer such information directly to the IBB, which may in turn choose to refer them to the police.
	My understanding of the situation is that if the bodies mentioned by the noble Baroness—they are absolutely bona fide bodies—have information in this area that is of relevance to the IBB, they would be able to make such referrals even though they are not under a duty to do so in the sense that they are the employer or a past employer of the individual concerned. But I shall respond to the noble Baroness in writing.
	I should also apologise to the noble Baroness that in Grand Committee I was not sufficiently up on the detail of Part 5 of the Police Act 1997, which refers to the CRB code of practice and the reason for the sanctions on registered bodies. Had I been so, I might have been able to meet her points then without the need to do so at this stage. The issue that I was not sufficiently on top of then, but I am now—as the noble Baroness says, I have written to her about this in my letter of 19 May—is the actual role of the registered bodies and the fact that non-registered bodies are not inhibited in their capacity to seek disclosures but simply cannot countersign applications themselves.
	The main role of the registered bodies is to countersign applications for enhanced disclosures. This role is very important—I think the noble Baroness and I are now at one on this—and is the reason why we have the sanctions we have. Although the ultimate sanction of withdrawing registration is a very draconian one, the intermediate sanction of suspension is, we think, an absolutely appropriate sanction, rather than, for example, fining such bodies. If the registered bodies do not fulfil their functions competently, the effect can lead to a situation of the sort we saw over the weekend where individuals can be incorrectly notified that they are included in the list or that inquiries are being pursued in relation to them. That occurred because the information supplied in the first instance to the CRB in respect of, for example, date of birth, proper spelling of names and addresses and so on, was not properly checked. It is often the incorrect checking of such information that leads to the kind of situation we saw at the weekend.
	We believe that the role of the registered bodies is of very great importance. The research that we have been conducting on the registered bodies has led us to take this issue still more seriously. Since last September, the CRB has visited 620 registered bodies to examine their compliance with their duties. Of this number, over half—that is, 373 of the 620—were found to be in overall breach of their conditions of registration to the extent that it could adversely affect the integrity of a disclosure certificate and/or the probity of the end-to-end disclosure process. I think the noble Baroness will agree that this is a serious state of affairs. As I say, it goes some way towards explaining the difficulties that the CRB has established in the absolute reliability of the information that it has, with all the consequences that we have seen over the weekend. In that context, it seems to us that the powers to suspend registration—and ultimately to withdraw registration—are appropriate.
	Many employers are not registered to countersign applications, and therefore make an application for an enhanced disclosure via an umbrella body that is registered to countersign applications. In the future, there will be fewer registered bodies. At the moment there are about 14,000 such registered bodies but, in order to enhance the professionalism of registered bodies, the CRB intends to reduce that number very substantially. However, it is the intention of this reform that employers who are not themselves registered bodies should still get a swift and satisfactory service from one of those umbrella registered bodies.
	I hope that the concerns of the noble Baroness have been met. It is in order to significantly improve the quality of the work done by registered bodies that we are seeking to take these powers. It is important that the registered bodies act with competence. If they fail to do so, it can have profound effects on individuals. On that basis, and with the information I will supply to the noble Baroness about the right to make references of individuals who are not under a duty under the Bill, I hope she will feel able to withdraw the amendment.

Baroness Walmsley: My Lords, I thank the Minister for his response. My concerns have indeed been addressed and I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.
	Clause 31 [Local authorities: duty to refer]:

Baroness Sharp of Guildford: moved Amendment No. 66:
	Page 20, line 7, at end insert—
	"( ) When considering a referral under this section local authorities and IBB shall take into account any guidance issued by the Secretary of State for this purpose."

Baroness Sharp of Guildford: My Lords, the reason for the amendment is to clarify the requirements on referrals to the IBB and to suggest that such referrals should be based on objective criteria and considerations. We have already mentioned those who have a duty to make referrals to the IBB. Among the bodies required to do so are local authorities, under Clause 31, and professional bodies, under Clause 33. The amendment relates to those two clauses.
	One of the central purposes of the Bill is to pick up on individuals who pose a risk to children or vulnerable adults either by their current conduct or by the possibility that they may offend in future. There is concern that Clause 31 and—for different reasons and to a lesser degree—Clause 33 are phrased vaguely. It is important that the impact of the provision is not simply to pull into referral many of the types of cases dealt with by social services departments in respect of individuals who, while they may have harmed children, do not pose a risk. But we also run the risk of having very different interpretation by local authorities of these provisions and overwhelming the IBB with referrals.
	These two amendments are about ensuring that there is both a consistent and an appropriate threshold for referrals. The amendment therefore proposes that the Secretary of State is required to issue statutory guidance, both to the IBB and the local authorities, on the types of cases and circumstances that should be referred to the IBB under Clause 31. It also proposes that there should be similar guidance issued to professional bodies under Clause 33. This picks up once again the issues discussed earlier about employers in regulated activities, where the noble Lord was good enough to say that the IBB would be issued with clear guidance so that employers would know when to make such referrals. Local authorities and professional bodies will also need clear guidance as to when to make referrals to the IBB.
	On a slightly different issue, will the Minister clarify the thinking behind Clause 31(4)(a)? The wording is slightly obscure. The first condition is set out in Clause 31(1) with reference to local authorities:
	"A local authority must provide IBB with any prescribed information they hold relating to a person if the first and second conditions are satisfied".
	The second condition is set out in subsection(4):
	"The second condition is that the local authority think . . . that the person is engaged or may engage in regulated activity or controlled activity".
	What does "may engage" mean? It is so vague. This requirement makes up one of the criteria that trigger a local authority duty to refer to the IBB. But is it this year, or next year? Could it be a student at the start of a vocational course who is involved in work in a regulated position? Will the Minister clarify this for us? I beg to move.

Baroness Buscombe: My Lords, we support the amendments in principle, but we are concerned that perhaps they are not quite specific enough. In our view, there should be a clear definition of the threshold at which a local authority has a duty to refer.

Lord Adonis: My Lords, I hope I can meet the first points made by the noble Baroness by stating categorically that we will issue guidance to local authorities and professional bodies so that they are clear about the grounds for the duty to refer information. We will do so for all the reasons that she gave as to the importance of ensuring clarity and consistency of practice nationwide. The guidance will also include advice on when the "harm test" can be said to have been satisfied and, as I set out in the note on the definition of the "harm test" I circulated to noble Lords before Grand Committee, harm will include physical harm, damage to a child or vulnerable adult's emotional or mental state, and harm to a vulnerable adult as a result of financial loss.
	Guidance will also be issued on the grounds on which the condition at Clause 31(4)(b)—that the local authority or professional body thinks that IBB may consider it appropriate for the person to be included in a barred list—may be met. This will ensure that local authorities and professional bodies are not under a duty to refer information on the grounds of trivial incidents of harm that would not be sufficient to bar a person.
	The guidance will also clarify the meaning of "may engage in a regulated position", which is used at Clause 31(4)(a), the clause to which the noble Baroness has just referred. It is not intended that this condition should effectively include anyone who has the capacity to engage in regulated or controlled activity at some point in the future, nor that a local authority or professional body should make a judgment about a person's likelihood to engage in regulated or controlled activity several months or a year from the time at which it is considering referring information about the person to the IBB. It is intended that this condition should include cases where a person, for example, is seeking employment in regulated or controlled activity—or a person has a significant history of involvement in voluntary work with children and vulnerable adults—and the local authority thinks that he may do so in the future, even though he is not volunteering at the precise moment when the local authority is considering referring information about him to the IBB. I hope that this addresses the point raised by the noble Baroness and limits, as the guidance will do, the very general wording in that subsection.
	The Secretary of State will also prescribe the information that must be referred to the IBB once the conditions for the grounds for referral have been met. As I set out fully in the regulation powers note, which I circulated before Grand Committee, it is envisaged that the information will include certain facts relating to the case, including an individual's name and other personal details, details of the behaviour engaged in by the individual, copies of relevant documents such as interview notes and notes of evidence, and information about police involvement and disciplinary hearings. I hope that I have given the noble Baroness the assurances that she was seeking and that she will feel that she does not need to press the amendment.

Baroness Sharp of Guildford: My Lords, I am very grateful to the Minister for his reply. It does indeed help to clarify the situation. I am glad that the guidance will be issued. I take on board fully the point made by the noble Baroness, Lady Buscombe, that it is important to know what the thresholds are on such an occasion, and I take it that the guidance will clarify this. I also thank the noble Lord for the clarification of Clause 31(4)(a). I understand that the full explanation and the repercussions of this will be set out in guidance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 33 [Registers: duty to refer]:
	[Amendment No. 67 not moved.]
	Clause 39 [Provision of information: no claim for damages]:

Lord Harris of Haringey: moved Amendment No. 68:
	Leave out Clause 39.
	On Question, amendment agreed to.
	Clause 43 [Damages]:

Lord Harris of Haringey: moved Amendment No. 69:
	Page 26, line 2, at end insert—
	"(1) No claim for damages lies in respect of any loss or damage suffered by any person in consequence of—
	(a) the fact that an individual is included in a barred list;
	(b) the fact that an individual is not included in a barred list;
	(c) the provision of prescribed information in pursuance of any of sections 27, 28, 29, 31, 32, 33, 36 and 37.
	(2) Subsection (1)(c) does not apply to the provision of information which is untrue by a person who knows the information is untrue and either—
	(a) he is the originator of the information and he knew at the time he originated the information that it was not true, or
	(b) he causes another person to be the originator of the information knowing, at the time the information is originated, that it is untrue."
	On Question, amendment agreed to.
	Clause 46 [Interpretation]:

Lord Adonis: moved Amendment No. 70:
	Page 28, line 43, leave out "or controlled"
	On Question, amendment agreed to.

Baroness Walmsley: moved Amendment No. 70A:
	Page 29, leave out lines 12 and 13 and insert—
	"must be made in accordance with the procedure in section "(Parliamentary scrutiny)."

Baroness Walmsley: My Lords, I rise to move Amendment No. 70A, and to speak to Amendment No. 70B, which is grouped with it. The effect of these amendments would be to allow Parliament to amend orders that amend the definition of what constitutes regulated activity under Clause 5(3), the power to make incidental provision—including modifying any enactment—under Clause 47(2) or regulations made under paragraph 19 of Schedule 2, listing offences or orders for which conviction, caution and so on will lead to automatic inclusion, or inclusion subject to representations on the barred lists.
	In Grand Committee, we tabled a different amendment to achieve the same thing. The Government's response was that this was highly unusual. Highly unusual it may be, but unprecedented it is not. So today I have tabled amendments that are virtually identical, with appropriate changes, to the parts of the Civil Contingencies Act 2004 which try to do the same thing: to enable Parliament to amend an order. It is particularly appropriate in this case because we are talking about lists that would be laid before Parliament. We have had sufficient debate and disagreement this afternoon about what should and should not be on lists. There will certainly not always be a meeting of minds as to any future list that might come before us in this way. It might be perfectly appropriate for Members of Parliament to be able to agree to some kinds of activities on a list that might be put before them and to disagree with others. It is important that Parliament should have the opportunity and an appropriate process laid down, which has a precedent in the Civil Contingencies Act, so that it can agree with some items that the Secretary of State might propose and disagree with others.
	That is the reason for the change in approach. I accept that the amendment we tabled in Grand Committee was inadequate because it did not give a mechanism by which the matter could be dealt with should somebody disagree with something on the list, or should a majority of members disagree with something on the list. That is why I have taken the model from the Civil Contingencies Act and re-submitted it with the same objective. I beg to move.

Baroness Buscombe: My Lords, I shall speak briefly to the amendment as I believe that I had something to do with the amendment to which the noble Baroness, Lady Walmsley, referred, during the passage of the Civil Contingencies Act. We were doing all in our power to curb some of what we believed to be the draconian powers being introduced by the Government. It was fortunate that when we brought forward a similar amendment with this kind of procedure, the House was full of those wishing to protect the fox, in the form of the Hunting Bill. It is rather amusing that some of the freedoms of this country have been protected because noble Lords were here to vote on the Hunting Bill and went through the Lobbies to vote in our favour on the Civil Contingencies Bill as well.
	There are concerns that reserving the list of behaviour to regulation could lead to offences being inappropriately designated. There is a problem here—even the affirmative resolution procedure is a blunt tool for legislative scrutiny, as it does not allow amendment to propose regulations.
	I gather there is some difficulty with debating this amendment; it is something to do with our conventions being considered at this time. Therefore, I do not believe that we are in a position to take this amendment much further this evening. That said, I will be interested to hear whether the Minister is able to respond in any way.

Lord Adonis: My Lords, my response needs to be in two parts. First, this would be a significant departure from normal practice. It is therefore well beyond my pay grade to be able to meet the wishes of the noble Baroness, Lady Walmsley. I am very grateful to the noble Baroness, Lady Buscombe, for elucidating the circumstances in which the Civil Contingencies Act came to include this provision. Being a new Member, I had not realised that it was all tied up with hunting—everything seems to come back to hunting, in some form or another, in your Lordships' House. However, I am informed that the powers to vary the regulations under the Civil Contingencies Act refer to arrangements for national emergencies such as a terrorist attack or epidemic. These are very serious and wide-ranging powers. It is in that context that the power to vary has been given.
	Although I cannot help the noble Baroness, Lady Walmsley, on the wider point, I can reassure her that we will consult very fully on the list of offences which would be included in the provision for automatic barring without representation. I know that that has been a particular concern of hers.
	I have already given noble Lords an illustrative list of those offences. In respect of the children's list, they would be offences under the Sexual Offences Act 2003 concerning rape; sexual intercourse with a girl under the age of 13; assault by penetration; rape of a girl under the age of 13; sexual assault of a child under the age of 13; and causing or inciting a child under the age of 13 to engage in sexual activity.
	In respect of the vulnerable adults list, the offences would include sexual activity with a person with a mental disorder impeding choice; causing or inciting a person with a mental disorder impeding choice to engage in sexual activity; engaging in sexual activity in the presence of a person with a mental disorder impeding choice; and causing a person with a mental disorder impeding choice to watch a sexual act.
	Most noble Lords were satisfied by looking at the illustrative list that we would not be moving into what they would regard as debatable areas in this context but those where there would be a broad consensus. I also assured them that the list will be shorter than the current list of offences, which applies under List 99, where there is no right of representation in any event, so that we would extend the categories of offences where there would be a right to make representations. I repeat that we will be consulting all interested parties, including the teaching unions, the NSPCC and other groups with a keen interest in this area, before we lay the regulations.
	Although I cannot, from this Dispatch Box, unilaterally change the conventions of the House, I hope that I can satisfy the noble Baroness that we will engage in very full consultation before these orders are laid. These offences are of the utmost seriousness, and we believe there will be a consensus that they should be covered in the way we propose. There will be a narrower range of offences than currently applies under List 99.

Baroness Walmsley: My Lords, I thank the Minister for his reply. Although he cannot satisfy me on the substance of my amendment, I accept what he says about consultation. He has a good track record and we are all very grateful for the way in which has listened to us during the passage of the Bill so far.
	I am still unhappy about the way in which these lists will be brought to Parliament, but I accept that there will be rigorous consultation before that happens. I suppose I will have to rely on that. I accept that this House may not have the competence to make this sort of change to a piece of legislation. I think I have made my point, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 70B not moved.]
	Schedule 5 [Amendments]:

Lord Adonis: moved Amendments Nos. 71 to 76:
	Page 51, line 10, leave out "the person" and insert "he"
	Page 51, line 17, leave out "the person" and insert "he"
	Page 52, line 20, leave out "the Council may have regard" and insert "regard may be had"
	Page 52, line 26, leave out "has been taken"
	Page 52, line 36, leave out "the Council may have regard" and insert "regard may be had"
	Page 52, line 42, leave out "has been taken"
	On Question, amendments agreed to.

Fishing and Logging Policies

Baroness Whitaker: rose to ask Her Majesty's Government how they respond to calls for environmentally sustainable fishing and logging policies.
	My Lords, I resist calling this a fish and chips topic, but there is a sense in which fish and the products of forest trees go together. Both are essential to the livelihood and sustenance of very many of the poorest of the poor; the large-scale commercial exploitation of both is harming the environment as well as those livelihoods; but exclusively environmental management of these precious public goods risks impoverishing further those who have little other resource.
	There are about 62 million households which depend in one way or another on fishing, and 22 million small-scale fishers. Of the total export value of the world trade in fisheries and aquaculture products of about $60 billion, half accrues to developing countries. It is a major source of foreign exchange for them and a key provider of cheap and accessible nutrition, as well as cash income for over 2.6 billion of their citizens.
	But, as we know, overfishing threatens all these gains. I heard many complaints in Senegal, where fishing is the only economic activity which provides decent jobs along the coastal area, about the big rapacious Spanish fishing boats which plundered their valuable and delicious fish, coming close in to the shore on night-time raids—an economic and an environmental threat.
	Last March, the High Seas Task Force, chaired by my honourable friend Ben Bradshaw, published research by the Marine Resources Assessment Group which set out the loss to the economies of poor countries from illegal, unreported and unregulated fishing, worth up to $9 billion a year. In sub-Saharan Africa alone, the loss was equivalent to one quarter of their annual fishing exports. And that is apart from the unsustainable pressure put on fish stocks, the destruction of the marine habitat and the insidious incentive to other illegal activity such as smuggling and money laundering which such large-scale evasion of the rule of law encourages, made easier by flags of convenience regimes.
	The problem is not so much lack of rules—there are international instruments—as lack of enforcement and of political will. Relatively modest funds would be enough to guarantee the protection of sustainable national fishing industries, for instance, in West Africa and the Mozambique channel, where national governance systems are up to the task. DfID and Defra, working together, have started the ball rolling with an international plan of action. But it all needs to come higher up within the international political agenda and pull in better resources. Particularly, I ask my noble friend what approach the Government propose to the European Union, whose members fish so heavily off the African coast, with over $350 million of subsidy and arguably predatory fish licensing agreements, typical of those negotiated between strong and weak parties.
	Logging provides even starker examples of the need for vigorously enforced sustainability that does not disadvantage poor people. Your Lordships have heard before in this House, from the noble Lord, Lord Eden, and others, of the terrifying rate of depletion of the world's forests and of the effects on climate and biodiversity. Pressure groups have campaigned vigorously against their destruction, with some response. Most east Asian governments have signed up to a regional agreement to protect their forests. The deputy treasurer of the Conservative Party has bought a piece of the Amazonian rain forest. There is a new Chinese tax on chopsticks. The European Union has recently promulgated the Forest Law Enforcement, Governance and Trade Initiative, to which the UK Government will donate £24 million over the next five years. Thus there is a range of solutions in prospect. But let us look more closely at some of them. One is to try to prevent any logging in forests. Mr Eliasch, who bought the 400,000 acres of rainforest, closed down the forestry operation and laid off 1,000 Brazilian workers. Cameroon decided to regulate commercial use of its forest through a statutory permit system, including substitute tree-planting, over 10 years ago. The money raised from the sale of the permits was to go to the development of adjacent rural areas. But laws are one thing and the capacity to implement them quite another.
	The DfID solution has built on its own illegal logging programme, commended by an independent review for exemplary working with the EU and for national cross-departmental work with the Foreign Office and with Defra. Some of the significant points in its successor policy are the participation of 25 private sector companies from across Europe and Africa, funds for enforcement and better governance in forest countries, and a recognition of the need to put our own—western—consumer house in order by deterring demand for illegally procured timber.
	But the tendency of multilateral agreements is to focus on safeguarding the forest against large-scale commercial exploitation of an unsustainable kind. No one can argue with the importance of that, and it is excellent that there is agreement among five EU governments to adopt procurement policies that favour certified wood. And it is a great pity that the United States does not want to join in.
	But there is a risk that those who live in the forests lose out. They will in any case lose employment if bad loggers are driven out, and they will lose their wood if "good" loggers police their patch and drive them away. I have seen poor millet farmers in Mali forbidden, by a very well intentioned NGO project manager, from using a cart to gather firewood. A much better example was the Takieta forest in Niger where the villagers, with the help of SOS Sahel, learn the difference between sustainable cutting of trees and damaging uprooting. There are also many other products of the forest than cut-down trees: there is rope, leaf fibre, gum arabic and medicine from renewable plants. If local harvesting is combined with local processing and manufacture, the value added remains in the community—if the capacity can be built up.
	Lack of long-term ownership, often the case for forest-dwellers, is a disincentive to investment in sustainability. In the absence of strong tenure rights, individual, environmental and economic rights need to be maintained. When powerful organisations, be they commercial loggers with modern legal title to land or influential environmental pressure groups, compete with the people who live in the forest, it is easy to see who will win. Forest management presents a conflict of rights, and it is important that a rights perspective is applied, with a conduit for just settlement where rights can be balanced one with another.
	Governments need the economic growth that sustainable cultivation of trees can contribute to. People need the jobs and cash that such employment brings. Forest dwellers also need their environment and their other sources of income to be protected. The world needs biodiversity, and the carbon and water storage which depend on it, to be safeguarded. May I ask my noble friend how DfID's newly launched strategy for research on sustainable agriculture will deal with more sustainable, equitable and profitable use of the forests? What will the role of the planned regional research programmes be?

Lord Eden of Winton: My Lords, I am sure the whole House wishes to thank the noble Baroness, Lady Whitaker, for bringing these two important subjects to our attention. I warmly congratulate her on the quality of her speech and the points she raised.
	All of us—not just in this House but in this country—need to be reminded why these two subjects are so important to us, and need to be educated on the subject. The BBC is performing a valuable service in that connection. This very evening there is a programme on a whale and another programme, the first of two by Sir David Attenborough, on climate change—very relevant to the subjects under discussion here today. Sir David is asking, in effect, "What on earth are we doing to our planet?". We should all ask that same question.
	As the noble Baroness has indicated, we are destroying thousands of acres of rainforest every year. As she said, I introduced a debate on this subject on 13 October last year. I will not go over that ground again, but this debate gives the Minister an opportunity to bring this House up to date on some of the issues that were then raised, several of which the noble Baroness has referred to.
	What, for example, after the plethora of committees, is actually happening on the ground? Has a single hectare of rainforest been saved? Have a single government taken active measures to control, if not eliminate, corruption in connection with logging operations? Are the indigenous people now being more involved in the discussion about what should happen to their own dwellings and habitat?
	What is happening to, for example, the great apes in Borneo and elsewhere? The orangutans are being destroyed almost to the point of elimination. Are their numbers being brought back to survival level? What is happening—this is perhaps the most important of all—to the much vaunted review by the World Bank of its rainforest logging policies? Has that review ever been completed? Have its policies been changed as a result of the evidence of the damage, notably in the Democratic Republic of Congo, which it actively encouraged? There is a lot to answer for in respect of rainforests.
	Most importantly, the noble Baroness talked about fishing. Here, again, the debate is extremely timely for next week in New York there is to be a meeting on the United Nations fish stocks agreement, which is concerned with the management of fish stocks on the high seas. That is the responsibility of regional fishing management organisations. Frankly, the way that responsibility is being discharged is an absolute disgrace.
	A report has recently been published by WWF which emphasises that fisheries are not being managed in a sustainable way. How could they be when governments connive in the vast over-capacity of authorised fleets; when the over-fishing of stocks is tolerated; and when there are virtually no rebuilding strategies, no safeguards, no precautions, and apparently no concern by those who are doing the fishing? They are indifferent to the consequences of what they are doing and the methods that they are using, which are horrendous. Vast fishing nets, some 60 metres wide, go down to depths of 1,000 metres or more and scoop up anything in the way without discrimination. They are ripping up 100 year-old corals and sponges.
	Fishermen use long-line fishing in the open ocean, fishing for tuna and marlin with lines up to 10 kilometres long with baited hooks. We can imagine what happens with several thousand long-line boats in operation throughout the globe, with 3.8 million hooks set globally each night. No wonder loggerhead turtles, which are on the red list of endangered species, are being killed at a rate of about 200,000 every year. The albatross, another endangered creature, is being destroyed at the rate of more than 100,000 every year.
	It is now known that there are places in the ocean—rather like watering holes in the Serengeti, where lions, leopards, gazelles, wildebeest and other species congregate at a relatively small spot—which are rich in tuna, swordfish, shark and billfish. Fishermen also know that and that is why they go there. Up to 100 million sharks are caught annually, mostly by accident. Thirty million metric tonnes of fish are thrown over the side of fishing boats every year, damaged, dying or dead. That is truly horrifying, wanton and mindless slaughter.
	Mr Simon Cripps, director of WWF's global marine programme, said, very moderately,
	"It's got to stop, we've got to do it quickly".
	Rather surprisingly, in my view, he goes on to say that there is hope provided we can get management in place. But I add that attitudes have to change dramatically. It has been suggested by Dr Callum Roberts of York University that marine parks or reserves should be established which would be entirely off limits to fishing. If the industrial scale of exploitation goes on, whole fish populations will be destroyed. Fishermen, I learn, are also now using military sonar to hunt in the deep ocean. What is the Government's attitude to that? Sonar causes dreadful disorientation to whales and other cetaceans, and probably the most horrific pain as well.
	Talking of whales, today sees the start of the 58th annual meeting of the International Whaling Commission. There is a moratorium on whale fishing, yet 1,400 whales will die this year. The Japanese are now targeting fin whales and Baird's beaked whales. They claim that that is done in the name of scientific research. Frankly, that is a load of bunkum. We know perfectly well that they have an education programme to persuade more people to eat whales. They are also using whales for dog meat. I hope that the Government will ensure that the moratorium on whale hunting will continue to be observed; that it will be more effectively policed and that harsh penalties will be imposed on those who contravene it.

The Earl of Sandwich: My Lords, the noble Lord, Lord Eden, speaks with characteristic passion, as he did when he introduced his debate on the rainforest last October. In that debate I drew attention to the effects of forced labour in Brazil, where agricultural workers are becoming the slaves of the loggers and ranchers and unwitting agents of the destruction of the rainforest. As the noble Baroness rightly said, it is the local people who are so often the last to benefit from the riches that have been taken away.
	Today I would like to return to Brazil. I thank the noble Baroness for allowing me to speak in the same context about the thriving sugar industry in the Amazon region. I will describe some of the human costs of Brazil's otherwise acclaimed environmental and energy policies. I acknowledge the help of Anti-Slavery International and research carried out by the Churches in Brazil.
	By chance I was in sugar territory in Houston, Texas last month, staying in the rapidly expanding suburb of Sugar Land, where sugar refining has actually come to a halt. Vast sugar plantations are giving way to new apartment blocks, hotels and shopping malls. Producers in the US southern states face increasing competition from Latin America.
	By contrast, the sugar industry in Brazil is still booming on account of the demand for ethanol as a home-grown fuel and an alternative to petrol. Today, more than half the country's total sugar harvest ends up in the nation's 30,000 bioethanol petrol pumps. Four out of five new cars now sold in Brazil are equipped to use ethanol, which can cost one-third less than petrol per litre. Oil would have to fall back to $35 a barrel to compete with ethanol in Brazil.
	Thanks to advances in engine design, several manufacturers have adapted new cars to "flex-fuel" models, which can alternate between gasoline, pure ethanol or a mixture of both. These accounted for more than 75 per cent of all the new cars sold in one recent month. President Lula is said to be delighted with the energy revolution which is saving Brazil billions in imports of fossil fuel. European Union member states, committed to reducing their carbon emissions by 8 per cent by 2012, are extremely interested in Brazil's experiment since ethanol is free of harmful pollutants such as sulphur dioxide and emits much less carbon dioxide than conventional fuels.
	Europe currently lacks the capacity to produce sugar-based ethanol in the quantities that makes biofuel affordable in Brazil and before long we could be major importers. President Bush is now trying to drop import tax on ethanol. Japan is considering a deal to import up to 6 billion litres. With the ever-rising demand for ethanol, the expansion of the industry, both in the scale of sugar plantations and in the rate of production, has become increasingly aggressive. As new plantations have grown, new distilleries and sugar plants have been installed and there has been a high demand for jobs for migrants. More than 70 new mills are due to open over the next six years.
	While this boom has raised employment levels, the Brazilian Churches' research shows that such pressure on production has been harmful to the health of sugar cane workers. Between the 1950s and the 1980s, sugar cane production had already risen from 50 to 80 tonnes per hectare. In the 1960s, the average production per worker was three tonnes of sugar cane per day; today it has quadrupled to 12 tonnes.
	That descends on the worker. Even a worker who cuts six tonnes has to walk four kilometres during the day. Having cut the stems off at ground level, he then has to stack them in one long row of sugar cane. The workers are exposed to full tropical sun while wearing heavy clothes to protect themselves against cuts. They suffer from extreme dehydration that causes painful cramps and convulsions.
	The ILO estimates that there are some 200,000 migrants employed under forced labour conditions in Brazil. Labour contractors tour the poor suburbs offering work at high wages in remote regions. When the workers arrive at their destination, they are already in debt for transportation, housing and food, so that, even after four months' harvesting, it becomes difficult for them to repay the debts before they return home—let alone support their own families.
	According to the Pastoral Land Commission in Brazil, sugar cane is often grown on cleared barren land with the help of huge amounts of fertiliser and is protected with insecticides. The chemicals are washed into the rivers and the ground water. As a result, the drinking water gets polluted, directly poisoning the poorer local population who still use wells and wash in the local rivers. Where sugar cane is planted up to the water's edge, sometimes encroaching on small farms, the chemicals also affect fish and seafood populations in the local rivers and mangrove swamps.
	The sugar barons often hold political and feudal positions that require their workers to submit to almost any conditions of labour. Illegal migrants, or clandestinos, have the worst deal of all, having no papers or benefits—nor even the right to receive them. While our Department for International Development cannot directly influence the policy of sugar producers in Brazil, surely our embassy can bring such issues to the attention of their government, so that the Churches at least know that there is international support for the rights of those migrant workers—remembering that, as consumers, we are putting pressure on them every day.
	Anti-Slavery believes that it is of the utmost importance that restrictions on companies are enforced to safeguard the care of workers, local populations, small private properties and the surrounding environment. Non-governmental organisations are rightly demanding a fairer and more sustainable rate of sugar production that respects the needs of both the workers and the local population, and balances those with the provision of cheaper, environmentally friendly fuel.

Lord Hunt of Chesterton: My Lords, I, too, congratulate the noble Baroness, Lady Whitaker, on introducing this debate. Current government policies, commercial pressures, population growth and urban development around the world are leading to disastrous degradation of vital natural areas, the loss of animals, plants and biodiversity generally, with serious consequences for the world climate and worse effects in particular regions. This is already damaging local economies, people's livelihoods and their health. In other words, the world's development is becoming less rather than more sustainable.
	I declare interests as president of the NGO ACOPS and as a professor at University College London.
	Articles in the scientific and popular press, and on the web, have emphasised all of the above points. Organisations such as the Natural History Museum, the BBC and CNN now report that only 10 per cent of the big ocean fish remain; that is just one statistic and one could make a whole speech of statistics. Sometimes who says things is equally important. Perhaps the most alarming statement that I have heard was made by David Balton, who should not be confused with Mr Bolton, America's UN ambassador. Mr Balton is the ambassador for the US State Department with special responsibility for fisheries and oceans. Incidentally, I note that the new Secretary of State for the Foreign Office has a special adviser for climate change. Maybe we are moving to the US idea of having ambassadors for particular areas. I strongly commend that. Mr Balton remarked that some parts of the ocean are now biologically dead or dying. He drew attention to strips of the Gulf of Mexico—so it is happening in both developing and developed countries. Parts of east China and other coastlines are equally at risk, including the Mediterranean, the Black Sea and the African coast. The main causes are fertiliser nitrogen pollution down the rivers, which ends up along the coasts. That demonstrates that integrated sustainable solutions require the bringing together of agriculture, urban development, fisheries and energy policy. As we know, all governments find integrated policies very difficult.
	The solutions to this and other environmental problems require three parallel actions—scientific explanations, acceptance and solutions. First, it is essential that one should have scientific monitoring, the prediction of future trends and the scientific understanding of the complex interactions that I have mentioned. It is not tenable simply to argue that every acre of forest should be conserved. That would be an extreme application of the precautionary principle. Those areas can be developed to provide food, sugar and fuel. Only rational studies will enable countries to establish what the limits are and the most appropriate methods. An extreme precautionary approach by the developed world is not acceptable to the developing world. As the noble Lord, Lord Eden, pointed out, the dangers of excessive fishing are very serious. I ask the Minister whether the UK monitoring of oceans and fishing is adequate and expanding. At the House of Lords Science and Technology Committee, experts from Defra reported that UK research tends to focus on new research topics and is downgrading its role in monitoring. Monitoring is essential if we are to make proper decisions about these critical issues.
	The second element of policy is that the existence of environmental problems needs to be accepted—by the Government, by non-governmental organisations, by society as a whole and by business. As other noble Lords have mentioned, that is critical. Perhaps the Minister would consider the role of schools. Links between institutions in different countries are helpful. A conference in Ghana was organised by ACOPS and that country's Government in November, which discussed an interesting programme involving connections between schools in the UK and Ghana, talking about social and environmental issues. If such practices were more widespread, that would be very effective. We have discussed that in this House and perhaps there is some further news to report, which I would welcome. Clearly such attitudinal changes must start at the lowest level in all the countries of the world.
	Finally, the essential features of practical solutions are that they first have to be found, then promoted and funded. How is that to be done? Much of DfID's current development policy, which has great merit, is carried out by funding national governments. As Ministers have explained, that has been effective in raising standards of education and health. But from what I have experienced, it is questionable whether the money given to finance ministries ever gets through to many of the environmental projects. Economists generally seem temperamentally opposed to demonstration projects.
	It is only through demonstration projects that people will learn, be stimulated and inspired. For example, Mr Sachs, who advised the United Nations on the millennium report, particularly emphasises his millennium villages around the world, where people learn about new methods of agriculture, in matters of fertilisation, planting trees, saving water, and so on. Those are the kinds of projects that are necessary. Now we have a chief scientist in DfID, perhaps he will be participating in those programmes. I know that DfID supports the Earth Resources Institute in New York. Maybe this will be one of the outcomes. This is essential, and I hope that we shall hear more about it. I commend the resolution to the House.

Lord Inglewood: My Lords, like the other speakers in the debate I begin by welcoming it and thank the noble Baroness, Lady Whitaker, for introducing it. I am sure that we all agree that without environmentally sustainable fishing and logging policies, the world could quite shortly be turned into a pretty sorry place. We do not need to be very perceptive to come to that conclusion, nor to stand up in the House of Lords and tell the world.
	Most of us here have aspects of life away from the House; it is the nature of the place. One of mine is that I am a farmer and what in the old House of Lords would have been called a traditional landed estate owner, and is now probably known as a land manager. I am not hands-on, but it is part of what I do. I remember when I was training, my father said, "When you work with the land you must produce running with the grain of nature". We can see plenty of instances of the consequences of quarrying nature rather than simply taking a tithe. Perhaps there is no better example than the fate of the herring fishing in the North Sea. Once you have killed the breeding stock you wipe out the future.
	It seems that the invariable problem wherever one goes is that short-term greed gets in the way of long-term good management. It is more or less an invariable maxim of resource management that the short term is damaging. We must not forget that almost the greediest of all are governments and their treasuries.
	It is easy from the perspective of the gothic comforts of the Chamber of the House of Lords to be insufficiently sensitised to how this can come about. Unless we apply our minds to identifying the factors at play, we shall never achieve what I call a sustainable system of sustainability.
	Much about degradation has already been said, in particular that logging is driven by agriculture, which is intended to improve or at least sustain the basic standards of living. If your family is starving, who gives a damn about the future of the world? Many of those countries where there is much global concern about forests and logging, such as Indonesia and Brazil, or where there is concern about the depletion of the fishing resources, such as in west Africa, are poor. Their argument, which I can understand, is: "It is all very well for you in the rich northern and western countries. You've got rich by destroying the globe and now you want to stop us trying to follow you". It is important for us to understand that point and not simply to laugh it off. We have no real choice but to back our concerns with our money. We in countries such as ours must put our money where our mouth is.
	That, almost inevitably, takes one towards that maligned and frequently misunderstood phrase, "partnership", whatever it may mean. We need a framework in which that can be done. We need confidence that if we put our money in, an outcome will result. The noble Baroness, Lady Whitaker, referred to the philanthropist who, she tells me, is vice-chairman of the Conservative Party and has bought some of the rainforest in Brazil to preserve it. If he is putting a large amount of his own money into that, he needs to have the confidence that the government there will not sequester it and cut it down.
	An obvious example of this kind of thing in a more general sense at government level is via the mechanism of debt relief. That has been done from time to time, and I entirely commend it. Certainly it is right and proper that aid programmes, whether bilateral or at European Union level, impose conditions. It is important to be sensitive about this because there is always a real risk that the creation of the framework could be perceived as neo-colonialism.
	I recall an occasion when I was sitting on the Front Bench opposite and had to go on behalf of Her Majesty's Government to Zambia. Part of my task was to explain to President Chiluba that the way in which he was implementing the aid polices was not quite in line with what had been agreed when the money had been handed over. President Chiluba got the message ahead of me and refused to see me. I can see his point. He did not want a lecture from a young whippersnapper from London.
	It is important to realise the significance of the way in which we carry forward some of the projects that we have in mind. If we do not win the hearts and minds of those with whom we have to deal to bring about some of the changes that we want to see, we are bound to fail. In life it is not good enough to be right; you must also be able to persuade your interlocutor that he wants, from choice, to run with the gist of the arguments you are advancing.
	One of the keys to making long-term progress is to establish a marketplace where there are incentives to promote good natural resource management and make them sufficiently attractive that they become more attractive to people in those countries than the rewards of simply exploiting and quarrying the natural resources.
	This is not merely a matter of government-to-government relations or NGO-to-government relations. It also involves the private sector using its own particular skills and resources, which are of course different from those of the other two parties that I mentioned, and which can contribute significantly to the desirable and needed changes in environmental practices and resource utilisation in many parts of the world. For example, carbon credits can be used to help establish forestry projects in third world countries, which are desirable as long as they are done in the right way with the right kind of species.
	But there is also a lesson for countries such as our own. What is "sauce for the goose is sauce for the gander". There is plenty of degradation of various kinds in our own country, in our own seas, and in the use of our own natural resources. We may not have done anything quite as dramatic as destroying rainforests in the United Kingdom, but it is uncanny how many mistakes of the much-derided common agricultural policy can be seen, at least to some extent, replicated in our forestry policy here. Such things need to be addressed as part of a wider project to ensure proper global resource management as a whole, and also to show the rest of the world that we are leading by example.
	Capitalism and private business are the greatest force for economic development and change that the world has ever seen. These forces must be harnessed to help solve the problems that we are debating tonight. What will the Government do to try to promote the private sector, much of which is the spiritual successor of those colonial servants who dedicated their lives to other parts of the globe? What about encouraging people once again to leave Britain and to work all round the earth, contributing to making it a better place?
	All that will cost. My party is returning to having an interest in those aspects of governance. No longer is it the preserve of the cranky few. Ruskinian economics should be at the heart of the economic debate, not a bolt-on to the periphery. It will cost, and it will probably cost us in this country disproportionately simply because proportionately we have a better ability to pay. We in Britain should recognise that with good grace, and recognise that the expenditure of public money outside the jurisdiction may in the long run be just as much in the national interest as spending it within it.

Lord Palmer: My Lords, I am sure that the noble Baroness, Lady Whitaker, had no idea how wide-ranging this subject would become. We have been to Brazil, and I ought to declare an interest as a forest owner as a residual beneficiary of a plantation in the West Indies on the island of St Lucia. I congratulate the noble Baroness most sincerely on securing the debate.
	I was deeply moved by the speech of the noble Lord, Lord Eden, and wish that he had been on David Attenborough's programme tonight.
	Some very poignant and important points have been made. I hope this debate gains an enormous amount of publicity. My noble friend Lord Sandwich made a stirring speech, all of which was music to my ears. I must declare an interest as president of the British Association of Bio Fuels and Oils. I share his tremendous fears that, at the end of the day, to meet the renewable transport fuel obligation we shall probably have to import biofuels from countries such as Brazil, which he mentioned.
	My noble kinsman, the noble Lord, Lord Hunt, asked about the monitoring of fishing quotas. I too would like to ask the noble Baroness, Lady Royall, whether she can assure us that we are getting on top of that. Having been all round the world, I have another interest to declare. For my sins, I have served two stints on Sub-Committee D of the European Union Committee, which has dealt with reports on sustainable fishing. Having also served three stints on the Refreshment Committee of your Lordships' House, I still have strong links with many friends I made while involved with the Refreshment Department. Currently, your Lordships' House is tendering for the supply of fish to ensure that your Lordships have the best possible quality and at the most affordable price. I ask the noble Baroness to do all that she can to ensure that whoever is selected to supply fish to your Lordships' House is able to guarantee that supplies, wherever possible, come from sustainable sources.

Lord Chidgey: My Lords, I add my congratulations to the noble Baroness, Lady Whitaker, on bringing this issue before the House tonight. She gave us a powerful exposé of the extent of illegal activities in these areas and the need for reasonable, manageable resources to enforce the existing conservation measures.
	Each contribution tonight has added to the knowledge of this House and to the scope of the debate. There have been too many excellent contributions for me to comment on them all. Perhaps I can add my own experience briefly before I move on to the substance of the debate. I can imagine nothing quite as dramatic as the first time I flew over the west African rainforest and saw the trees stretching to the horizon for 360 degrees. Sadly, some 20 years later, when, as a parliamentarian, I retraced my steps, instead of unbroken rainforest from horizon to horizon, I saw that it is now patchy and there are areas of savannah, scrub and bush. It is no longer the virgin rainforest that I had seen in my formative years.
	I agree with the noble Baroness about the importance of fishing in a country such as Senegal, where there are literally tens of thousands of single-person fishing industries. I am talking of people who fish from canoes in the open sea and by which they sustain their families, provided that the factory ships have not been along the week before and scoured the sea of anything that swims. I agree with her entirely on the importance of that.
	I should declare an interest as I want to comment on some of the work of the Royal Institute of International Affairs, Chatham House. As a paid-up member, I suppose that qualifies as an interest.
	I am sure that the Minister will be aware of the development of the High Seas Task Force (HSTF), which was set up as a result of a call for action on illegal and unsustainable fishing at the world summit on sustainable development in 2002. Noble Lords may know that the task force was developed in 2004 and presented a final report, Closing the net: Stopping illegal fishing on the high seas, in March this year. A consultation workshop was held at Chatham House to discuss the UK action plan for implementing the recommendations of the task force. The UK action plan will comprise three strands, with the United Kingdom taking an international role in facilitating and promoting the adoption of the High Seas Task Force measures.
	The three strands are: first, taking a leadership and facilitation role for all HSTF measures for the next two years through our own co-ordination unit; secondly, undertaking work for specific measures; and, finally, taking action internally to implement the task force measures within the UK or overseas territory fleets or overseas territory waters. Although we are fairly early in the programme, it would be helpful if the Minister could provide us with an update and perhaps a progress report.
	I turn to the impact of illegal logging, or the sustainability of logging. The demand from consumer countries potentially helps to drive illegal logging activities in the producer countries. That fact has been recognised since the beginning of an international focus on illegal logging. In 1998, G8 countries agreed, as part of a G8 action programme on forests, first, to assess their internal measures, particularly public procurement policies, and then to aim to control illegal logging and international trade in illegally logged timber.
	In 2005, Ministers at the Forest Law Enforcement and Governance conference, in St Petersburg—where they get these titles from I do not know—came out with an important statement. They were,
	"convinced that all countries that export and import forest products [including timber and timber products] have a shared responsibility [to undertake action] to eliminate illegal exploitation of forest resources and associated trade".
	That is a very important statement. Governments can pursue a range of options to reduce their contribution to illegal logging overseas. They can try to exclude illegal products by setting up border mechanisms to prohibit imports, by using procurement policy to create protected markets for legal products only, and by using their own legal framework more aggressively to target importers of illegal products.
	That brings me to the concept of licensing. The immediate problem with licensing is how to distinguish between legal goods and illegal ones. Exporting and importing countries may not be aware that they are handling illegal products and, even if they are, often the standard shipping documentation is all too easy to doctor.
	The European Union has provided us with a solution: to establish a licensing system with partner countries. The heart of the EU action plan on Forest Law Enforcement, Governance and Trade (FLEGT) rests on the negotiation of voluntary partnership agreements with producer countries. The timber licensing system is similar, in effect, to systems already in place in international agreements such as the Convention on International Trade in Endangered Species (CITES) or the Kimberly Process, for example, on conflict diamonds. Unlike those, however, the licensing system is being built up through a series of bilateral agreements. Inevitably, there are a number of significant unknowns in the development of the FLEGT system.
	These important unknowns should be placed on the record. I hope that the Minister can give the Government's view, and that there will be some progress and answers. The unknowns I am talking about include the number of countries that will sign up to voluntary partnership agreements and thereby join the scheme. I believe that preliminary discussions have been positive, but producer countries will need to be convinced that the benefits of the licensing system, which gives access to EU markets, will outweigh the costs of the process.
	Another unknown is the impact of the scheme. Is it possible that exporters in producer countries will prefer to avoid the EU market and simply send their products to alternative outlets such as China, which is now a major importer of timber? Another unknown is: how easy will it be to evade the scheme? The fact that some producer countries may not join the scheme—at least initially—provides a route through which illegally produced, and therefore unlicensed, products from the voluntary partnership agreement countries can enter the EU. The last unknown is how rapidly the scheme can evolve.
	Finally, I want to raise some points on the legality of logging, the timber importing process and the overlapping sustainability issues. First, on timber procurement, I think it is fair to say that the United Kingdom leads in the European Union in most respects, but we need evidence of how well it is being implemented by government purchasers. It excludes social criteria; for example, the rights of forest communities, as a component of sustainability, which seems odd. The Government have argued that that is because of the EU procurement rules, but other countries are doing that; in particular, the Netherlands, France and Denmark, so I do not see what our problem is here. The same policy of licensing needs to spread through to local government and our devolved administrations as soon as possible. I would like to know what the Government are doing to help that process.
	The Government are aware that we are doing a lot of good things in this country, but we have a problem that the majority of the EU countries are not following suit, and we need some action from countries such as Spain, Italy, Portugal, Sweden and Finland, which are major importers of timber. Finally, what action are the Government contemplating in working out how to plug the loopholes in the FLEGT timber licensing scheme?

Lord Astor of Hever: My Lords, I congratulate the noble Baroness, Lady Whitaker, on securing this debate. As the noble Lord, Lord Palmer, said, it has been a wide-ranging one with knowledgeable contributions from all sides of the House on issues that have serious worldwide ramifications in environmental, human rights and developmental terms. My noble friend Lord Eden rightly said that those issues are of the utmost importance. When we consider the calls we make on our counterparts in the developing world to uphold standards of good governance, transparency and accountability, it is vital that we should be able to lead on these issues by our own example. This is no different when we look at the natural resource sector, be it forestry, fishing, oil or minerals.
	The recent controversial European fishing deal with Morocco, the World Wildlife Fund criticism of the failure to control deep-sea fishing, the International Fund for Animal Welfare's renewed campaign against commercial whaling in Japan and the Convention on International Trade in Endangered Species ban on trade in caviar and other products from the sturgeon at the start of this year are only a few examples that emphasise concerns surrounding unsustainable fishing and the significant impacts both here and abroad. It is a topic that needs to be tackled head on before we completely decimate the world's fisheries, destroy marine habitats and kill billions of unwanted fish and other marine animals.
	My noble friend Lord Inglewood gave the good example of the herring stock in the North Sea. My noble friend Lord Eden mentioned the WWF report, which stated that,
	"unsustainable fishing is predominantly caused by poor fisheries management and wasteful destructive fishing practices . . . as a result the future of the fishing industry is under threat, as are already endangered marine species and habitats, and the livelihoods and food security of millions of people".
	Environmentally, bycatch has been responsible for the death of over 300,000 small whales, dolphins and porpoises each year, pushing several species to the verge of extinction. My noble friend Lord Eden mentioned loggerhead turtles, which are very much endangered. More than 250,000 of them and the critically endangered leatherback turtles are caught annually on longlines set for tuna and swordfish. Twenty-six species of seabirds, including 17 albatross species, are threatened with extinction because of longlining, which kills more than 300,000 seabirds each year.
	Within this context is our own fishing industry. The UK fleet landed 654 tonnes of sea fish with a total value of £513 million in 2004. In addition, we imported some £1,473 million-worth of fish, and exported fish and fish products to the tune of £881 million. We have a substantial fish processing industry of around 573 businesses, which employ some 18,180 people. The Government admitted in their strategy unit report, Net Benefits, that the,
	"current systems of UK and EU fisheries management will not ensure long-term, sustainable commercial fish stocks".
	Indeed, the common fisheries policy has failed to conserve fish stocks and protect the livelihoods of fishermen. The noble Lord, Lord Whitty, admitted that the CFP had not faced up to the real difficulties of conservation and ensuring the fair sharing of the burden.
	This is not leading by example. What steps have Her Majesty's Government taken to assess the current fish stocks and encourage sustainable fishing practices with the use of refined equipment and techniques to reduce the incidence of bycatch? How are they ensuring the affordability of such equipment and the training for various techniques? We on these Benches believe that the best way to ensure sustainable fishing is to allow the nation's fishermen to run the industry on a local basis within a strategic framework set by national Government in which the priorities should be the restoration of the marine environment and the rebuilding of the industry managed on a day-to-day local basis.
	On a larger scale, what response have Her Majesty's Government undertaken in light of calls that regulators have failed to respond to the expansion of bottom trawling in deep waters? What representations have they made to support the provision of more teeth to these regulators and the WWF recommendation that the United Nations should review fishing on the high seas and strengthen the resolve of regional authorities to deal with states that flout agreements? I would also appreciate it if the noble Baroness could outline the Government's stance on Japan's continual and increasing violations of the 20-year ban on whaling, which has been mentioned.
	I now turn to the issue more commonly known as "conflict timber". Thanks to the invaluable work of organisations such as Global Witness and the Environmental Investigation Agency, the link between natural resources, especially illegal timber, and human rights issues has been exposed, as have the hidden costs such as declining biodiversity, soil erosion and increased risk of fires as seen in the infamous south-eastern haze nine years ago.
	The human rights angle has been highlighted in the recent trial of Gus Kouwenhoven in The Hague who admitted that revenues from Liberia's illegal logging industry were used to import weapons, despite the UN arms embargo. Similar links were exposed regarding the funding of the Khmer Rouge, which began to disintegrate once international pressure forced the Thai Government to close their border to its illegal logging trade. Conflict timber has also been identified as a significant source of revenue for violent conflict in Burma and for supporting the Mugabe regime in Zimbabwe.
	I commend the lip service that Her Majesty's Government have undertaken on the issue, but I remind the House that the UK is the biggest importer of illegal wood within the EU, which itself is responsible for £3 billion of lost revenue to producer countries. This lost revenue is vital to help developing countries stand on their own feet and manage their resources in a more environmental manner. Why bother if the market price for sustainable timber is consistently undercut by cheaper illegal wood? It is vital that we maintained joined-up government on the issue, in terms of both preventing the import of illegally harvested timber and supporting the implementation of forest law enforcement, training and awareness projects through DfID and EU programmes in the source countries.
	What steps have Her Majesty's Government taken to ensure that imported timber, especially for government projects, is sourced only from sustainable managed reserves that can be properly traced, especially when it is imported through third countries such as China? What pressure have the Government put on the international community to promote laws in the EU and the US specifically to prohibit the import and sale of illegally sourced timber and wood products? What representations have the Government made to the authorities in Indonesia and other source countries to prosecute financial crimes relating to illegal logging and to criminalise the illegal sawmill bosses and owners, following the recent criticism by the Indonesian Minister responsible for logging? What projects do we support that encourage appropriate training and remuneration for forestry inspectors to help to prevent temptation in the form of bribes?
	These two issues merit separate debates. However, it is clear that there are strong themes running through both which emphasise the importance, both politically and environmentally, of natural resources and the role that they play in human rights and development issues. The current levels of effective policing in the developing world of forestry and fishing issues are not enough.

Baroness Royall of Blaisdon: My Lords, I, too, am grateful to my noble friend Lady Whitaker for securing today's debate and giving us all the opportunity to discuss and raise awareness about environmentally sustainable fishing and logging policies. As she and other noble Lords have graphically demonstrated, both fisheries and forests are essential to the livelihood and sustenance of the poor, but also to wider global sustainability.
	There are powerful pressures on the world's fisheries and forests. Developing countries are faced with growing demands on their resources from rapidly expanding domestic and international markets. At the same time, the need to manage and protect these resources in a sustainable way—for the long-term benefit of poor countries and for the global environment—has never been more pressing.
	My noble friend Lord Hunt raised the question of education and the role that schools might play in raising awareness in the UK and in developing countries. I am delighted to inform noble Lords that there are some excellent government initiatives that have linked schools in the UK with schools in developing countries. They interact via the internet, webcams, and so on. I will certainly provide noble Lords with further information.
	The economic, environmental and social impact of the fishing industry is a key element in the fabric of the UK's coastal waters and communities. The industry is part of the social fabric of many coastal communities and has an important contribution to make to the well-being of the marine environment, which includes achieving sustainable fisheries.
	Defra's five-year strategy highlights the need to put sustainable development into practice. Embedded in the strategy are its key marine fisheries objectives. These include: ensuring clean, healthy, safe, productive and biologically diverse oceans and seas; and a fishing sector that is sustainable, profitable and supports strong local communities, managed effectively as an integral part of coherent policies for the marine environment.
	The Government also recognise the importance of fisheries to developing countries. International trade in fish amounts to $60 billion a year, half of which has its origins in developing countries. The value of fish exports is greater than the combined values for tea, coffee, cocoa and sugar. I find that quite staggering.
	Sustainable fisheries can make a significant contribution to economic growth and poverty reduction in the developing world but, in many countries, this contribution is limited by problems of poor management, as recognised by the noble Lord, Lord Astor. Pressures are being generated by high demand for fish products in rich countries, by high levels of poverty and increasing numbers of people having to resort to fishing to sustain a basic livelihood—and, in some cases, by developed countries subsidising their fleets to move into the waters of poorer countries.
	Illegal fishing is causing particular problems. DfID-funded research has found that $9 billion a year is lost to illegal fishing internationally and that a major part of that cost is borne by poorer countries. Defra and DfID are working closely to implement an international plan of action to tackle illegal fishing. In sub-Saharan Africa alone, the value of illegal fishing is $1 billion per year.
	However, not all is doom and gloom. Success stories such as Namibia show the way forward. There was a 39 per cent rise in GDP contribution from fisheries between 1990 and 2000. Political commitment and good management led to control of illegal activity, resulting in increases in productivity, revenues and jobs. I am pleased to report that my honourable friend Gareth Thomas recently had discussions with the Namibians about developing a regional approach, along the lines of the Forest Law Enforcement, Governance and Trade Regulation. If such an initiative were developed by African regional groupings, DfID would consider financial support, but I assure the noble Lord, Lord Inglewood, that that would be an Africa-led initiative. They would be in the driving seat and we would be there supporting them; it would not be a sort of neo-colonial initiative.
	In the long run, the contribution of sustainable fishing to the economies of developing countries can be realised only if rich countries take into account the impact of their policies on developing countries. DfID and Defra are working to ensure that there is coherence in international fisheries policy as it relates to developing countries.
	My noble friend Lady Whitaker asked about the Government's approach to the European Union, whose members fish heavily off the African Coast. We have been working to ensure that the EU pays increasing attention to coherence between the Community's fisheries objectives and EU international development objectives—for example, by promoting the need for greater scrutiny of fisheries agreements to ensure that they are equitable and benefit the developing countries concerned. The European Commission is committed to participating in the international action plan to take forward the recommendations of the High Seas Task Force and to tackling illegal fishing, especially through ensuring rigorous monitoring and surveillance of its own fleet operating under fisheries agreements. I can assure my noble friend Lord Hunt that monitoring continues to be of the utmost importance.
	The noble Lord, Lord Chidgey, asked for an update on the action plan for fishing. Defra and DfID are now establishing a joint unit to implement the plan. This week, a team is at the UN to promote wider involvement in the action plan. Furthermore, we are in discussion with the Government of Namibia, as I have just reported .
	In passing, I mention what the Government are doing to promote the private sector, a question asked by the noble Lord, Lord Inglewood. DfID is promoting business-to-business links between European and African timber companies through the Timber Trade Federation—I have moved on to timber. It is also working with a group of progressive European timber companies to improve forest management. Finally, it is working with the private sector in the UK to promote sustainable fisheries.
	Developing countries will also need the capacity to manage their resources if they are to secure their share of the benefits from these resources. The Government are prepared to offer support to help countries to develop that capacity, and to help them to negotiate better terms in their relations with the developed countries of the world. I note the concerns expressed by the noble Lord, Lord Palmer, and I will certainly ensure that these are brought to the attention of the House authorities. I am sure that we would all warmly support what he is endeavouring to achieve.
	I now move from fish in our own restaurants to chips and, in doing so, I pay tribute to the noble Lord, Lord Eden, for his untiring efforts to sustain the rainforests. He asked what, among other things, we were doing for indigenous populations. I assure him that the UK is working in partnership with a number of countries and a wide range of organisations to protect the livelihoods of forest-dependent poor people, including indigenous peoples, and to ensure that benefits from commercial logging support them and the development in their communities. DfID is working to ensure that indigenous peoples in the Democratic Republic of Congo have a voice and can secure benefits for local people from the activities supported by the World Bank.
	The pressures on the world's rainforests, more than half of which have already been lost, are enormous. Much of the logging is both illegal and unsustainable. Poor countries suffer the most. Illegal logging loses Governments billions of dollars in lost revenue and distorts markets and trade. It promotes corruption, undermines the rule of law and sometimes funds armed conflict. It also has environmental consequences, as many noble Lords have pointed out, including the loss of habitats and biodiversity. Climate change studies suggest that deforestation is responsible for about 20 per cent of man-made carbon dioxide emissions. The UK Government provide support to forestry in developing countries through DfID, Defra and the FCO. The main support, through DfID country programmes, averages £18 million per year. The FCO supports sustainable forest management through its global opportunities fund, and Defra supports work on biodiversity through the Darwin initiative.
	I regret that I omitted to respond to the noble Lord, Lord Eden, about sonar devices in fishing and their implications for whales. The Government are aware of the potential damage from developments in sonar initiatives. They are funding research to try to understand better the impact of such new technologies, and will establish a policy to address the problem once there is a clear understanding of the interactions with marine mammals.
	DfID's current work is focused on addressing the policy, governance and market failures that drive illegal and unsustainable logging. Its support for improved forest governance, law enforcement and trade and for stronger civil society engagement in policy making is helping to promote sustainable logging policies in timber-producing countries such as Indonesia and Ghana. It also contributes substantial funds to the development of international forest policy through the World Bank, the UN's Food and Agriculture Organisation and the Global Environment Facility. Last year, the UK was host to G8 Environment and Development Ministers, and we reached agreement on some important policy commitments to reduce demand in G8 countries for illegally logged timber.
	There was other progress in 2005. Under our EU presidency, the EU Forest Law Enforcement, Governance and Trade Regulation, which the noble Lord, Lord Chidgey mentioned, was adopted. We will now be able to enter into agreements with timber-producing countries and provide them with assistance to tackle illegal logging and to reform their forest policies, governance and trade. DfID will spend £24 million over the next five years to support this work. I think that the noble Lord asked for an update on where we are on the EU regulation and how many countries have signed up to it. I cannot give him a reply at present. It is very early days, but I undertake to inform all noble Lords in writing as soon as we have any progress.
	As I mentioned, this year we will continue to work with the private sector to encourage responsible business practices that favour legal timber, and we will build on the successes of the UK's timber procurement policy and the commitment of central government departments to procure products made from legal and sustainable timber. My noble friend Lady Whitaker referred to DfID's newly launched strategy for research on sustainable agriculture. This includes: a programme to use more research to help to validate and promote the best innovations from previous DfID-funded research; four regional research programmes—three in Africa and one in Asia—which will work on regional priorities in close partnership with existing regional organisations; and a joint-funded programme with UK research councils to ensure that basic research is promoted and adapted for use in developing countries. None of these elements takes a sectoral approach, and naturally we consider sustainable agriculture to include the management of forest resources. It is likely that sustainable forest resource management will be prioritised to some extent within each element.
	The noble Earl, Lord Sandwich, spoke of the dire conditions of workers involved in ethanol production in Brazil. The Government are indeed aware of the dreadful condition of those workers, but the Brazilian Government have publicly stated that they want to eradicate such practices before the end of their term, and have prepared legislation to confiscate farms that practise slave labour. Our Government raise with the Brazilian Government the importance that we attach to addressing these and other human rights concerns in Brazil. That was done most recently in April when my noble friend Lord Triesman called on Brazil's special secretary for human rights.
	The challenges related to environmentally sustainable fishing and logging are enormous. It is absolutely clear that, in the long run, the contribution of both sustainable fishing and logging to the economies of developing countries can be realised only if the rich countries take into account the impact of their policies on developing countries, and if the latter have the capacity for sustainable management of their own resources. I trust that the initiatives I have outlined today demonstrate that we are committed to working on both fronts, and are making progress.

House adjourned at sixteen minutes before nine o'clock.

Wednesday, 24 May 2006.